England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
THE HONOURABLE MR JUSTICE BEAN

		Royal Courts of Justice Strand, London, WC2A 2LL
		04/04/2012

Lord Justice Longmore:

1. This is the judgment of the court.
2. Mr Salimi is a failed Iranian asylum seeker whose rights of appeal became exhausted in early 2012. He was detained in August 2010 and he was given removal directions which required him to be placed on a charter flight to Baghdad on 6^th September 2010. He travelled with an escort in the seats either side of his own seat. Other escorts travelled on the aircraft; he asserts that, on arrival at Baghdad, three British escorts used force on him to get him onto the floor of the aircraft. He also claims that, while he was thus restrained face down on the floor, Iraqi police beat him on the head, shoulders and back before forcibly removing him from the aircraft. The British Embassy in Iraq became concerned about his treatment and took steps to return him to the United Kingdom 2 weeks later.
3. He now wishes to complain of the conduct of the escorts and to make that complaint to the Independent Police Complaints Commission ("IPCC"). Both the Secretary of State and the IPCC say that the IPCC have no jurisdiction to consider Mr Salimi's complaint because, although they have (by virtue of regulations made under section 41(1)(c) of the Police and Justice Act 2006) been given power to investigate complaints in relation to the provision of services rendered pursuant to arrangements relating to the discharge by officials of functions relating to immigration and asylum, section 41(3) of the 2006 Act expressly provides that regulations may not confer functions on the IPCC in relation to the exercise by any person of a function conferred on him by or under Part 8 of the Immigration and Asylum Act 1999 ("the 1999 Act") and the escorts were, while in Iraq, exercising a function so conferred. Moreover the relevant Regulation, while providing for the IPCC to have functions in relation to relevant officers and contractors (such as those providing escort services) in or in relation to England and Wales, expressly also provided that the IPCC are to have no function in relation to a relevant contractor exercising specified enforcement functions by or under part 8 of the 1999 Act.
4. This appeal therefore gives rise to technical questions of statutory construction and it is convenient to set out first the relevant statutory provisions of the 1999 Act. Section 14 (in part 1 of the Act) states:-

"14 Escorts for persons removed from the United Kingdom under directions

1) Directions for, or requiring arrangements to be made for, the removal of a person from the United Kingdom may include or be amended to include provision for the person who is to be removed to be accompanied by an escort consisting of one or more persons specified in the directions.

2) The Secretary of State may by regulations make further provision supplementing subsection (1).

3) The regulations may, in particular, include provision-

a. requiring the person to whom the directions are given to provide for the return of the escort to the United Kingdom;

b. requiring him to bear such costs in connection with the escort (including, in particular, remuneration) as may be prescribed;

c. as to the cases in which the Secretary of State is to bear those costs;

d. prescribing the kinds of expenditure which are to count in calculation the costs incurred in connection with escorts."

5. No regulations have been made under s14(2).
6. Part 8 of the 1999 Act is entitled "Detention Centres and Detained Persons".
7. Section 156 is in Part 8 of the Act and provides:-

"156 Arrangements for the provision of escorts and custody

1) The Secretary of State may make arrangements for-

a. the delivery of detained persons to premises in which they may lawfully be detained;

b. the delivery of persons from any such premises for the purposes of their removal from the United Kingdom in accordance with directions given under 1971 Act or this Act;

c. the custody of detained persons who are temporarily outside such premises;

d. the custody of detained persons held on the premises of any court.

2) Escort arrangements may provide for functions under the arrangements to be performed, in such cases as may be determined by or under the arrangements, by detainee custody officers.

…

4) Escort arrangements may include entering into contracts with other persons for the provision by them of-

a. Detainee custody officers; or

b. Prisoner custody officers who are certified under section 89 of the Criminal Justice Act 1991, or section 114 or 122 of the Criminal Justice and Public Order Act 1994, to perform escort functions.

5) Schedule 13 makes further provision about escort arrangements."

Detainee custody officers, as mentioned in sections 156(2) and 156(4) are defined in section 147 as meaning "a person in respect of whom a certificate of authorisation is in force". Section 154 of the Act empowers the Secretary of State to certify fit and proper persons as being authorised to perform escort functions and enacts schedule 11 which makes further provision about such officers.

8. The statutory provisions relevant to the IPCC begin with Section 41 of the Police and Justice Act 2006:-

"41. Immigration and asylum enforcement functions: complaints and misconduct

1) The Secretary of State may make regulations conferring functions on the Independent Police Complaints Commission in relation to-

(a) the exercise by immigration officers of specified enforcement functions;

(b) the exercise by officials of the Secretary of State of specified enforcement functions relating to immigration or asylum.

(c) the provision of services pursuant to arrangements relating to the discharge of a function within paragraph (a) or (b).

2) In subsection (1) the reference to enforcement functions includes, in particular, reference to-

a. powers of entry,

b. powers to search persons or property,

c. powers to seize or detain property,

d. powers to arrest persons,

e. powers to detain persons,

f. powers to examine persons or otherwise to obtain information (including powers to take fingerprints or to acquire other personal data), and

g. powers in connection with the removal of persons from the United Kingdom.

3) Regulations under subsection (1) may not confer functions on the Independent Police Complaints Commission in relation to the exercise by any person of a function conferred on him by or under Part 8 of the Immigration and Asylum Act 1999.

…

7) Regulations under subsection (1) shall relate only to the exercise of functions in or in relation to England and Wales."

9. Regulations 2, 3 and 21 of the UK Border Agency (Complaints and Misconduct Regulations 2010 state:-

"2 Interpretation

1) In these Regulations-

…

"Relevant contractor" means-

a) a contractor exercising specified enforcement functions in relation to immigration or asylum …

2) In these Regulations "specified enforcement functions" means subject to paragraph (3)-

…

g) powers in connection with the removal of persons from the United Kingdom;

3) The following shall not be regarded as an enforcement function-

(i) the making of an immigration decision;

(ii) the making of any decision to grant or refuse asylum; or

(iii) the giving of any direction to remove persons from the United Kingdom

3 Application: general

1) Subject to regulations 6 (general functions of the IPCC) and 72 (revocation of the 2009 Regulations, saving and transitional provisions), the IPCC shall have functions in relation to relevant officers, relevant officials of the Secretary of State, relevant contractors, officials exercising customs revenue functions and customs revenue contractors in, or in relation to, England and Wales.

2) The IPCC shall not have functions in relation to the exercise of a function conferred on a relevant officer, an official of the Secretary of State exercising specified enforcement functions in relation to immigration or asylum, or a relevant contractor exercising specified enforcement functions in relation to immigration or asylum by or under Part 8 (detention centres and detained persons) of the Immigration and Asylum Act 1999.

21 Reference of complaints to the IPCC

1) Where the complaint is-

a) one alleging that the conduct complained of has resulted in death or serious injury;

b) any complaint not falling within paragraph (a) but alleging conduct which constitutes-

(i) a serious assault, as defined in guidance issued by the IPCC

…

(v) a complaint which refers to an allegation of an infringement of Article 2 or 3 of the European Convention on Human Rights; or

(c) which arises from the same incident as one in which any conduct falling within paragraph (a) or (b) is alleged; or

(d) one in respect of which the IPCC notifies the relevant appropriate authority that it requires the complaint in question to be referred to the IPCC for its consideration,

it shall be the duty of the relevant appropriate authority to refer the complaint to the IPCC."

10. Mr Southey QC for Mr Salimi contends that both sections 14 and 156 of the 1999 Act confer powers on escorts to travel with detainees to their destinations; section 14, it is said, relates to powers after a person (whether detained or not) has been placed on board an aircraft while section 156 relates to powers before a detainee has been placed on board. The IPCC would, therefore, have jurisdiction to consider complaints relating to the time when a detainee is on board an aircraft or thereafter at any time before delivery or discharge in his country of destination but not complaints relating to conduct in England before the detainee boards the aircraft.
11. This somewhat counter-intuitive construction is said by Mr Southey to arise from the fact that both sections confer powers on the escorts and from the fact that the provisions of Schedule 2 of the Immigration Act 1971("the 1971 Act") do not authorise detention by an immigration officer (or anyone else) once a detainee has been placed on board a ship or aircraft so that s. 156 of the 1999 Act (which only applies to detainees) can have no application once the person to be removed has boarded the aircraft.
12. Ms Giovannetti QC for the Secretary of State, supported by Mr Johnson QC for the IPCC, submits, that section 14 does not confer any powers on the escorts at all but merely permits the Secretary of State to make arrangements with carriers for the escorts of detainees and authorises him to require such carriers to carry those escorts in the company of the detainees. It is Part 8 of the 1999 Act and section 156 in particular which confers powers and duties on escorts and it is these powers and duties which are excluded from the IPCC's jurisdiction. Bean J agreed with the Secretary of State and the IPCC.
13. To understand this argument it is necessary to set out some of the relevant provisions of Schedule 2 to the 1971 Act. Paragraphs 8 and 9 authorise immigration officers to give removal directions, in respect of persons refused leave to enter the United Kingdom or illegally here, to the captain or owners or agents of a ship or aircraft. Paragraph 10 authorises the Secretary of State to give removal directions to the owners or agents of any ship or aircraft (including, as in this case, an aircraft chartered for the purpose). Paragraph 16 then provides:-

"16.-

(1) a person who may be required to submit to examination under paragraph 2 above may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter.

...

(2) if there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A or 12 to 14, that person may be detained under the authority of an immigration officer pending-

(a) a decision whether or not to give such directions;

(b) his removal in pursuance of such directions.

(3) A person on board a ship or aircraft may, under the authority of an immigration officer, be removed from the ship or aircraft for detention under this paragraph; but if an immigration officer so requires the captain of a ship or aircraft shall prevent from disembarking in the United Kingdom any person who has arrived in the United Kingdom in the ship or aircraft and been refused leave to enter, and the captain may for that purpose detain him in custody on board the ship or aircraft.

(4) The captain of a ship or aircraft, if so required by an immigration officer, shall prevent from disembarking in the United Kingdom or before the directions for his removal have been fulfilled any person placed on board the ship or aircraft under paragraph 11 and 15 above, and the captain may for that purpose detain him in custody on board the ship or aircraft."

14. Mr Southey's argument proceeds as follows:-

i) on the true construction of paragraph 16 of Schedule 2 of the 1971 Act, powers of detention only exist pending removal; once removal has begun, there are no continuing powers of detention;

ii) that is because, once a detainee subject to removal directions has been placed on board a ship or aircraft, he is under the authority of the captain who has, by international law, the power of detention; the responsibility for the detainee shifts from the immigration officer to the captain and there is thus no continuing power of detention;

iii) if there were any doubt about that as a matter of construction of the schedule, the matter is put at rest because it is to be presumed that Parliament does not intend to legislate with extraterritorial effect see e.g. Broad of Trade v Owen [1957] AC 602, Treacy v DDP [1971] AC 537, R (Al-Skeini) v Defence Secretary [2008] 1 AC 153 para 49 per Lord Rodger of Earlsferry;

iv) Part 8 of the 1999 Act is entitled "Detention Centres and Detained Persons" and only applies, therefore, to detainees namely persons lawfully detained;

v) once a person subject to removal directions has been placed on board an aircraft he is no longer a detainee (or at least is no longer lawfully detained once the aircraft has left United Kingdom airspace);

vi) the escorts in the present case were therefore not exercising any function conferred on them by or under Part 8 of the 1999 Act and the exclusion of those exercising such functions from the jurisdiction of the IPCC does not in any way impinge on the authority of the escorts in Baghdad who can therefore be investigated by the IPCC;

vii) it is not for these purposes relevant or necessary to ask how the escorts had authority to travel with Mr Salimi but, if it is relevant or necessary, that authority is to be found in section 14 of the 1999 Act which authorises the Secretary of State to include in any removal directions a provision for a person who is to be removed to be accompanied by an escort. The escorts in the present case were therefore exercising functions conferred or contemplated by section 14 of the 1999 Act not Part 8.

15. Ingenious as the argument is, and tenacious as Mr Southey's espousal of it was, it is, in our judgment, fallacious from the outset. The concept of detention "pending … removal" in paragraph 16(2) of schedule 2 of the 1971 Act is not confined to the period from the beginning of the detention to the beginning of the removal process. It means "pending the completion of the removal process". There are at least two reasons for this. First, the beginning of the removal process is an inherently uncertain concept. Would it be on leaving a detention centre? On arrival at an airport? On arrival at the departure gate? On arrival at the steps of the aircraft? On being seated on board the aircraft? On the aircraft leaving its departure point? On beginning its flight? On leaving UK airspace?
16. Secondly, and perhaps more importantly, paragraph 16(4) expressly contemplates that detention may continue during the process of removal because it imposes a duty on the captain of the aircraft "if so required by an immigration officer" to prevent any person, subject to removal directions and placed on board the aircraft, from disembarking

"in the United Kingdom or before the directions for his removal have been fulfilled."

The captain is then also given power to detain such person in custody on board the aircraft. It is thus clear that the captain can detain during the process of removal "if so required by an immigration officer". That must contemplate that the immigration officer's own authority to detain must last for the same time otherwise he would have no authority to require the captain to prevent disembarkation or to detain the relevant person. The provision is necessary to ensure that for this purpose the captain has to comply with the immigration officer's requirement.

17. Mr Southey's submission that, because by international law a captain has authority over his aircraft and has himself the power to detain a person and, no doubt, use reasonable force in order to do so, the authority of an immigration officer is thereby displaced is therefore incorrect. Paragraph 16(4) cannot work unless the immigration officer has continuing authority to detain; moreover, not only is there no hint of that authority ceasing to exist once removal has begun, but such cessation is actually inconsistent with the words "before the directions for his removal have been fulfilled".
18. We would therefore construe the words "pending … his removal" in paragraph 16(2) as meaning "pending the process of removal" rather than "up to the point when removal begins". The presumption that Parliament does not legislate with extra-territorial effect is strongest when Parliament is enacting criminal offences; in the context of making removal directions and giving ancillary authority to detain persons subject to those directions, it must be much weaker. Neither the receiving state of a person subject to removal directions nor any intermediate state (if there is a change of aircraft) is likely to feel that its territorial rights are infringed by continued detention of such a person. If such a person were to escape before being handed over to officials in the receiving state or during a change of aircraft in an intermediate state, he then would become a no doubt unwelcome problem for that state rather than a problem for the United Kingdom; to that extent any such state would be likely to welcome the fact that the authority to detain continued until the removal process was complete.
19. Once it is clear that the authority of an immigration officer to detain a person subject to removal directions continues during the removal process, it is also clear that escort arrangements, made pursuant to section 156(2) of the 1999 Act, can provide for functions under those arrangements to be performed by detainee custody officers or prisoner custody officers. Detainee custody officers are (as we have said) defined by Section 147 of the 1999 Act and are certified by the Secretary of State pursuant to section 154 of that Act; that section makes further provision about this and enacts schedule 11 of the Act which sets out their powers and duties (including the duty to prevent a relevant person's escape from lawful custody and a duty to be readily identifiable by means of a uniform or badge or otherwise). All these powers and duties are conferred or imposed by Part 8 of the Act of 1999. Section 14 of the Act says nothing about the powers or duties of escorts (whether detainee custody officers or prisoner custody officers). That section merely empowers the Secretary of State to include in any removal directions a provision for the person who is to be removed to be accompanied by an escort. The purpose of the section is to ensure that the Secretary of State has power to require an airline to accept not only the person to be removed but also an escort.
20. In our judgment Mr Southey cannot get out of section 14 any enactment of the powers or duties of such escorts which are all contained in Part 8 of the Act. If the submission that section 156 only applies to detainees and that lawful detention lapses at the beginning of the removal process were correct and that escorts, once they and the persons being removed are on board the plane, are exercising functions under section 14 of the Act not under Part 8 of the Act, there would be no regulation of escorts while they are doing the main part of their job. They would, presumably, be entitled, for example, to remove their uniforms or badges or other means of identification. That can hardly have been Parliament's intention.
21. It is, therefore, evident that the escorts in the present case were exercising functions under Part 8 of the Act of 1999. In those circumstances, although section 41 of the Police and Justice Act 2006 empowered the Secretary of State to make regulations conferring functions on the IPCC in relation to the exercise by officials of the Secretary of State or relevant contractors of specified enforcement functions relating to immigration or asylum and in particular to (the only relevant function for the purpose of this case):-

"(g) powers in connection with the removal of persons from the United Kingdom,"

such regulations were not permitted to confer functions

"in relation to the exercise by any person of a function conferred on him by or under Part 8"

of the 1999 Act.

22. Nor has the Secretary of State purported to confer functions on the IPCC in relation to the exercise of functions conferred by Part 8 of the 1999 Act. Indeed to put the matter beyond doubt, Regulation 3(2) of the UK Border Agency (Complaints and Misconduct) Regulations 2010 provides:-

"The IPCC shall not have functions in relation to the exercise of a function conferred on a relevant officer … or a relevant contractor exercising specified enforcement functions in relation to immigration or asylum by or under Part 8 (detention centres and detainee persons)"

of the 1999 Act. "Relevant Contractor" is defined in a way that includes the escorts in the present case.

23. Mr Southey submits that section 41 of the 2006 Act contemplates that the IPCC is to have some functions in relation to "powers in connection with the removal of persons from the United Kingdom" and that, if the IPCC is to have no power to investigate the conduct of escorts on aeroplanes, their function in that regard is so emasculated as to leave then nothing to investigate. Bean J thought there might be powers in relation to escorts escorting those never detained. In practice, that might be a very small category of persons since persons being involuntarily removed will almost always be detained at some stage and those being removed voluntarily are unlikely to need an escort anyway. Be that as it may (and we see no need to express any view as to the correctness of Bean J in this regard), we do not think that this consideration can displace the plain words of the statute or the regulations.
24. Our conclusion that the IPCC has no jurisdiction to investigate the complaint made in relation to Mr Salimi's escorts would, of course, be worrying and might even lead to arguments about a possible breach of Article 3 of the European Convention of Human Rights, but for the fact that Mr Salimi has an alternative remedy of referring the matter to the Prisons Ombudsman. Both the Secretary of State and the Ombudsman accept that the complaints fall under the Ombudsman's jurisdiction. One can understand that Mr Salimi might prefer an investigation by the IPCC but we conclude that that is not an option to him.
25. Accordingly we agree with Bean J and, like him, see no need to embark on the alternative objection by the IPCC to the exercise of their jurisdiction, namely that by virtue of Regulation 3(1) they only had functions in relation to relevant contractors

"in, or in relation to, England and Wales."

26. We would therefore dismiss this appeal.