England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/07/2011

Mr Justice Bean :

Introduction

1. It is now recognised as an important element of the rule of law that those who exercise the coercive power of the State should be accountable for any wrongdoing which they are found to have committed in the course of their duties; and that there should be an independent body with power to investigate complaints of such wrongdoing. The issue in this case is which independent body can deal with the complaint. The Claimant alleges that he was the victim of a serious assault at Baghdad Airport by Iraqi police with the active assistance of three contractors who had been escorting him on his enforced removal from the UK pursuant to directions given on behalf of the Secretary of State. He wishes the Independent Police Complaints Commission ("IPCC") to investigate his complaint. The Defendants say that the IPCC has no jurisdiction but that the Police and Prisons Ombudsman does.

The facts

2. The Claimant applied for asylum in the United Kingdom on 7^th September 2007 on the basis that he was a refugee from persecution in Iraq. That claim was finally rejected in March 2010 when he exhausted his appeal rights. On 3^rd August 2010 he reported to the Swansea Immigration Reporting Centre where he was arrested and subsequently detained at a number of Immigration Removal Centres. He alleged that he was not Iraqi but Iranian. This was not accepted. He was given removal directions requiring him to be placed on a charter flight to Baghdad on 6^th September 2010, and he travelled on that flight seated with escorts on either side of him.
3. On arrival at Baghdad airport Mr Salimi and others refused to leave the aircraft. Iraqi police officers then boarded the plane. The Claimant's case, which I will assume for present purposes to be correct, is that three British escorts used force on the Claimant to get him to the floor of the aircraft. While he was thus restrained face down on the floor he was beaten on the head, shoulders and back by the Iraqi police who proceeded to remove him from the aircraft. He sustained serious and extensive bruising and was disorientated. Just over two weeks later, after the British Embassy became concerned about his treatment, he was returned to the United Kingdom.
4. On 20^th December 2010 his solicitors wrote to the IPCC complaining about, among other matters, the actions of the escorts accompanying him at Baghdad airport. The IPCC were asked to exercise their powers to require the complaint, which was copied to the Professional Standards Unit of the UK Border Agency, to be referred to them. In due course the UKBA declined to refer the case to the IPCC, and the IPCC declined to exercise its powers to require a referral, arguing that it did not fall within their remit.
5. The IPCC's view was not that the Claimant was without any remedy by way of complaint: rather it was that the allegations fell within the remit of the Prisons and Probation Ombudsman. On 18^th February 2011 an IPCC staff lawyer wrote to the Ombudsman's office asking for their views on whether their remit would extend to accepting an application from Mr Salimi once the UKBA investigation was concluded. An initial response from the Treasury Solicitor on behalf of the PPO was (in agreement with the Claimant's solicitors) that the case did not fall within the Ombudsman's terms of reference. However, by letter of 13^th April 2011 the Treasury Solicitor wrote that the Ombudsman was now satisfied that Mr Salimi's complaint would be eligible for investigation by her. The letter noted that that the Ombudsman's staff have investigated complaints about the actions of UKBA escorts who are escorting persons outside the UK in similar circumstances to those of Mr Salimi.

Immigration removal

6. For at least the last 40 years the powers of the Home Secretary to enforce immigration control have included powers to detain and remove from the country foreign nationals who have been refused leave to enter or have entered illegally. In many thousands of cases every year removal directions are given requiring the captain of an aircraft to remove a named individual to a country specified in the directions (see paragraphs 8 and 10 of Schedule 2 to the Immigration Act 1971). Directions may be given to the captain and owners of the aircraft providing for the person who is to be removed "to be accompanied by an escort consisting of one or more persons specified in the directions" (s 14(1) of the Immigration and Asylum Act 1999).
7. The process of enforced removal includes some powers, such as arrest and search, which may be carried out by immigration officials but are analogous to police activities; and others, relating to detention, which are analogous to those of prison officers. As to the latter, part VIII of the Immigration and Asylum Act 1999 (headed "Detention Centres and Detained Persons"), creates the status of "detainee custody officer", being a person holding a certificate that he is authorised by the Secretary of State (under s 154) to perform escort functions, custodial functions at a removal centre, or both. Section 147 defines "escort functions" as being functions under "escort arrangements", which in turn are defined as arrangements made by the Secretary of State under s 156.
8. Section 156 states, so far as material:

(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 the 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."

Complaints about immigration enforcement

9. Parliament established the IPCC (replacing the Police Complaints Authority) by the Police Reform Act 2002. Section 10 requires the Commission to secure the maintenance of suitable arrangements for the handling of complaints made about the conduct of "persons serving with the police". There is no equivalent statutory scheme in respect of complaints against prison officers. But the Prisons and Probations Ombudsman has wide powers to investigate alleged wrongdoing by prison staff. Her terms of reference also extend to complaints by "immigration detainees".
10. By s 41 of the Police and Justice Act 2006, as amended in 2009, Parliament has provided:

(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 (c. 33)………

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

Section 41(1)(c), extending the regulation–making power to the activities of contractors, was added by the 2009 amendment.

11. Regulations were made in 2008 specifying the immigration and asylum enforcement functions which were to come within the IPCC's remit. These were replaced in 2009 and again in 2010, by which time s 41(1)(c) had come into force. The 2010 Regulations apply in this case. Regulation 3(1) provides for the IPCC to have functions in relation to relevant officers, officials and contractors "in, or in relation to, England and Wales"; but, by regulation 3(2);

"The IPCC shall not have functions in relation to … 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."

12. "Specified enforcement functions" are defined by regulation 2(2) as meaning the seven powers listed in s 41(2) of the 2006 Act (together with an eighth which is immaterial for present purposes). The making of an immigration decision, or of any decision to grant or refuse asylum, or the giving of any removal direction is not regarded as an enforcement function (regulation 2(3)).
13. If a complaint is properly within the remit of the IPCC, regulation 21(1) of the 2010 Regulations imposes a duty on the "relevant appropriate authority", in this case the Secretary of State, to refer certain classes of complaint to the Commission. One of these is where the complaint is of conduct which is a serious assault as defined in the Commission's published guidance; another is where the conduct amounts to inhuman and degrading treatment in breach of ECHR Article 3. It is common ground that the assault alleged by Mr Salimi is a serious assault within the Commission's definition. He is therefore entitled, notwithstanding the willingness of the Ombudsman to deal with his complaint, to a decision in this court on whether his case does fall within the IPCC's remit, since if it does the Secretary of State is bound to refer it to them and they are bound to deal with it.
14. At the time when proceedings were issued there was a significant live issue as to whether Article 3, and in particular the Convention right to an effective remedy for breaches of Article 3, applied to the present case, being an allegation of assault involving contractors acting on behalf of the Secretary of State in the presence of Iraqi police at Baghdad airport: see R(Al-Skeini) v Secretary of State for Defence [2008] 1 AC 153. But in oral argument Mr Hugh Southey QC for the Claimant accepted that it is no longer a live issue. The fact that the allegation is of a serious assault gives the Commission jurisdiction if it is not otherwise excluded: whether the serious assault amounted to inhuman or degrading treatment as well makes no difference in this respect. And while the Claimant would prefer to have his complaint dealt with by the IPCC rather than the Ombudsman, it cannot be said that requiring the complaint to be directed to the Ombudsman is a breach of the right to an effective remedy.
15. Ms Lisa Giovannetti QC for the Secretary of State and Ms Anne Studd for the IPCC argue that the jurisdiction of the IPCC is excluded on two grounds. Firstly, the escorts were exercising functions under Part 8 of the 1999 Act, so that the regulation 3(2) exclusion applies. Secondly, the claim is not within regulation 3(1) because the escorts' functions were not being carried out "in, or in relation to, England and Wales".

Were the escorts exercising functions under Part 8 of the 1999 Act?

16. On the face of it the escorts would appear to have been exercising functions under section Part 8 of the 1999 Act, specifically s 156(1)(b), the delivery of detained persons from a removal centre or other place of detention for the purposes of their removal from the UK. Mr Southey accepts that s 156 applies to the journey from the removal or detention centre to the steps of the aircraft. But, he argues, once the detainee has boarded the plane the position changes. The escorts' functions and powers then derive from s 14(1) of the same Act, cited above (directions to the captain of the aircraft requiring him to allow the person being removed to be accompanied by escorts); and, like other persons on board the aircraft, they have a duty under s 94(3) of the Civil Aviation Act 1982 to render assistance to the captain in restraining anyone who does or is about to do anything which jeopardises safety, good order and discipline on board the aircraft while it is in flight. Section 14 is not confined to detainees, and some persons being removed check in voluntarily at the airport without having been detained.
17. Mr Southey further argues that if the Defendants' construction of the 1999 Act and 2010 Regulations is correct, section 41(2)(g) of the 2006 Act, allowing regulations to be made extending the IPCC's remit to complaints about removals, would be deprived of any effect. But the answer to that last point is that the IPCC does have jurisdiction in the case of a contractor exercising powers in connection with removal where the individual has never been detained.
18. Ms Giovannetti submits that the escorts were exercising functions under s 156 rather than s 14. Section 14 does not confer functions at all. It simply empowers the Secretary of State (in practice acting through UK Border Agency officials) to direct the aircraft's captain to allow escorts to accompany the detainee. In theory this could be done in the case of someone who is the subject of removal directions who has never been detained, but in practice such individuals present such a low risk of disruption or escape that escorts are not used. If escorts are to be used the individual to be removed is always detained, even if only for a short period (in some cases half an hour), in order to establish his status as a detained person to be accompanied by a detainee custody officer authorised to perform escort functions. Mr Salimi, as set out above, had in fact been detained for over a month.
19. Mr Southey's submissions would create the following anomaly. Suppose a former immigration detainee being removed against his will from Heathrow airport is seriously assaulted twice by the same detainee custody officers, once on the ground and once a few minutes later after entering the aircraft. On Mr Southey's case the IPCC would have no jurisdiction over the first complaint, which he accepts is excluded by regulation 3(2), but would be required to consider the second. It would be surprising if that is what Parliament or the draftsman of the regulations intended.
20. I accept Ms Giovannetti's submission that the contractors escorting Mr Salimi were exercising functions under Part 8 of the 1999 Act before and throughout the journey to Iraq, including the period when the aircraft was on the tarmac at Baghdad airport. The complaint is excluded from the IPCC's remit by regulation 3(2). That single point is sufficient to defeat the Claimant's case.
21. The question of whether the escorts were exercising functions "in relation to England and Wales" (as Mr Southey submits they were) therefore does not arise. I will simply record Ms Studd's submission that the phrase "in or in relation to England and Wales" is designed to give the IPCC oversight of powers in connection with removals from Scotland and Northern Ireland pursuant to a decision made in England and Wales, but does not extend further than that: and add that in my view the point is far from straightforward.

Conclusion

22. The claim for judicial review must be dismissed.