England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		27 July 2012

1. THE DEPUTY JUDGE: As long ago as 3 September 2009, the claimant, who is a Nigerian citizen and was then a senior lecturer at the Department of Sociology, Adekinle Ajasin University, Nigeria, landed at Heathrow at 0825 hours, having come from Nigeria via Amsterdam and with a current visa endorsed on his passport. At 0840 hours the following day, he left on an escorted flight back to Nigeria, his leave to enter having been cancelled the previous afternoon. It is common ground that he was detained at Heathrow virtually from the time of his arrival and that the detention continued until his arrival back in Nigeria.
2. In these proceedings the claimant seeks declarations that he was unlawfully imprisoned throughout that period, alternatively during the latter part of that period, and that his rights were contravened under Article 5 of the ECHR. He also claims that the decision to detain, and continue to detain, him constituted misfeasance in public office; and also that throughout the period of his detention he was treated in a way which interfered with his rights under Article 3 of the ECHR. If his claim were to succeed on any of those grounds, he would be entitled to damages, for which a separate assessment hearing would be required.
3. Initially there were two additional grounds. The first of these was based on arbitrary treatment under the Race Relations Act 1976. The second was based on Article 8 of the ECHR. Both of these were maintained in the Claimant's skeleton argument, submitted the day before the hearing began, but formally abandoned towards the close of the claimant's counsel's opening submissions.
4. Permission was granted by Cranston J, following an oral hearing. Although delay was raised in the detailed grounds of defence, it was not raised as an issue before me.

The Statutory Framework

5. The claimant's visa had effect as leave to enter the United Kingdom: see section 3A(3) of the Immigration Act 1971 ("the 1971 Act").
6. Section 2A of the 1971 Act provides:

"(1) This paragraph applies to a person who has arrived in the United Kingdom with leave to enter which is in force but which was given to him before his arrival.

...

(2A) Where the person's leave to enter derives, by virtue of section 3A(3), from an entry clearance, he may also be examined by an immigration officer for the purpose of establishing whether the leave should be cancelled on the grounds that the person's purpose in arriving in the United Kingdom is different from the purpose specified in the entry clearance.

...

(5) A person examined under this paragraph may be required by the officer ... to submit to further examination.

...

(7) An immigration officer examining a person under this paragraph may by notice suspend his leave to enter until the examination is completed.

(8) An immigration officer may, on the completion of any examination of a person under this paragraph, cancel his leave to enter.

(9)Cancellation of a person's leave under sub-paragraph (8) is to be treated ... as if he had been refused leave to enter at a time when he had a current entry clearance.

(10) A requirement imposed under sub-paragraph (5) and a notice given under sub-paragraph (7) must be in writing."

7. Section 16 of the 1971 Act provides:

"16 (1A) A person whose leave to enter has been suspended under paragraph 2A may be detained under the authority of an immigration officer pending—

(a) completion of his examination under that paragraph; and

(b) a decision on whether to cancel his leave to enter.

...

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."

8. The Immigration Rules (HC 395) provide:

"10. The power to ... cancel leave to enter or remain which is already in force is not to be exercised by an Immigration Officer acting on his own. The authority of a Chief Immigration Officer or of an Immigration Inspector must always be obtained.

...

40. for the purpose of paragraphs 41-46 a visitor includes a person living and working outside the United Kingdom who comes to the United Kingdom to transact business (such as attending meetings and briefings ...)

41. The requirements to be met by a person seeking leave to enter the United Kingdom as a visitor are that he:

(i) is genuinely seeking entry as a visitor for a limited period as stated by him, not exceeding 6 months; and

(ii) intends to leave the United Kingdom at the end of the period of the visit as stated by him; and

(iii) does not intend to take employment in the United Kingdom; ..."

9. The Customs and Excise Management Act 1979 provides that:

"78(2) Any person entering ... the United Kingdom shall answer such questions as the proper officer may put to him with respect to his baggage and any thing contained therein ...

...

138(1) Any person who has committed, or whom there are reasonable grounds to suspect of having committed, any offence for which he is liable to be arrested under the customs and excise Acts may be arrested by any officer ... at any time within 20 years from the date of the commission of the offence."

Facts

10. These are largely undisputed. The claimant applied in July 2009 for a visa to visit the United Kingdom for three days in September 2009 for the purpose of an academic conference at the University of Manchester. The event was the 2009 annual conference of the British Sociological Association Medical Group. He was issued a visa for the standard 6-month period, with (so I assume) the standard condition prohibiting employment. There is now no dispute that such a conference took place on 3 September and that the claimant was programmed to deliver his paper there at 1650 hours.
11. His plane from Amsterdam was a little delayed, but arrived shortly after 0800 hours, and on reaching the terminal he, along with some other passengers, was asked some questions by Customs Officer Wiltshire. She became suspicious because of the answers he gave to some of her questions. In particular, in response to a question why he had put an address in Bristol on his landing card, the claimant replied: "I will stay one night with my cousin ... to drop my things". Asked how he would get to Bristol, he replied, "My cousin will be here", which the customs officer took to mean his cousin would be meeting him at Heathrow. The claimant told the customs officer that he was visiting the United Kingdom to attend a conference which was starting that day, and, when asked why he had arrived late, the claimant explained that the original flight he had booked had been cancelled.
12. In her later witness statement, Customs Officer Wiltshire said that she noted that his journey had begun in Nigeria, which she considered to be a country known for exporting drugs. She was suspicious of the transit through Amsterdam, which she thought might be to deflect attention from the original point of departure. She also regarded as suspicious the reference to Bristol which appeared inconsistent with delivering a lecture at Manchester that afternoon. She therefore escorted the claimant to the Immigration Control area, where Immigration Officer Gill questioned the claimant. There is no record of what was said in that interview, although it can be presumed that the claimant either gave, or confirmed, answers similar to those he had previously given to the customs officer. Then the immigration officer served on the claimant a form IS81 (Notice to Person Required to Submit to Further Examination). This form acts as the written requirement under section 2A(5) of the 1971 Act, and written notice of suspension of leave to enter under section 2A(7), as required by section 2A(10). Ms Jegarajah for the claimant argued that there was no, or inadequate, evidence of service of this form, and points out the oddity that the IS81 proforma states that the IS81 was issued by Immigration Officer Gill at 0820, which must be incorrect. A more likely time is about 0845. I find on the basis of the clear evidence of Customs Officer Wiltshire, who was present at the time, and what was stated in the IS81 proforma, that Immigration Officer Gill did issue the form to the claimant. It is regrettable that no copy seems to have been kept of the form, but the IS81 proforma records that the passenger was issued with form IS81 because "NSGV", which (on instructions) Mr Waite, who appeared for the Secretary of State, told me meant "not satisfied genuine visitor".
13. Customs Officer Wiltshire then escorted the claimant to collect his luggage in order to continue her examination. She found paperwork relating to the Manchester conference, noted that it was to begin that day, and that the claimant was, in her opinion, already late for it. From the fact that in interview the claimant had referred to staying in Bristol, she had assumed his intention was to stay the night in Bristol rather than going straight to Manchester. By then, she had formed the impression that the claimant might be carrying drugs. She listed in her contemporaneous notes the following matters: lone traveller/transit; first time to UK; in possession of £1,250; inconsistencies in story; attending Manchester - address given in Bristol; one day late for conference; change of booking; large distended stomach. She therefore obtained the authority of her manager to carry out a compass X-ray of the claimant to see if any foreign bodies could be detected in his abdomen. This was authorised at 0904 hours.
14. On request, the claimant agreed to be X-rayed and signed a form that he agreed he was attending voluntarily and was not under arrest. According to Customs Officer Wiltshire (whose account was recorded in the custody record, and there is no evidence to the contrary) the X-ray revealed what appeared to be foreign bodies within the claimant's abdomen, and, as a result, at 0911 hours she arrested him on suspicion of being involved in the importation of a controlled drug.
15. At this stage, the claimant was transferred from the airport terminal to the custody suite at Colnbrook IRC. He needed to be taken through the busy baggage hall. She formed the view that it was reasonable and justified to apply handcuffs, given the seriousness of the suspected offence and the risk of absconding. The handcuffs were applied at 0947 hours and removed on arrival at the custody suite at 1010 hours, although the claimant says they were not removed until more than two hours after they were placed on him. A contemporaneous note by Customs Officer Consodine confirms the time given in her witness statement by Customs Officer Wiltshire, and I reject the claimant's version as wholly implausible. Customs Officer Consodine's note records that he inspected the claimant's wrists and saw no marks, but the custody record records "Slight marks, no pain". This is disputed in the claimant's witness statement of 13 July 2012, where he says: "The handcuffs really eat into my skin and I had bruises on my wrist ... I felt the pain and I know where it exactly hurts."
16. The claimant consented to a urine test at 1045 hours. The test indicated no trace of controlled drugs. According to the custody record, at 1058 hours the claimant was taken to an interview room to speak to a solicitor on the telephone. At 1135 hours, he asked to use the toilet, and this enabled the staff to check whether his excreta contained any packages. The custody record states that he passed a "small clear motion", and the evidence is that "clear" in this context means "clear of any packages". According to the claimant's recent witness statement, he was told that if he did not provide urine and excreta samples, he would be taken to hospital for medical examination. I am sceptical that this was the case, and in the absence of any application to cross-examine the customs officer, I prefer her evidence.
17. Then at 1150 hours (at about the time the claimant says the handcuffs were removed), he was informed that he was no longer under arrest and returned to Terminal 4, no handcuffs being applied for the return journey. That was the end of the involvement of the Customs team in the investigation.
18. Drug smuggling having been ruled out as the purpose of entry, the matter returned to the charge of the Immigration team. The claimant was taken to the holding room and served with form IS91R, which stated that the reason for his continued detention was that "there is insufficient reliable information to decide on whether to grant you temporary admission or release" and that "you have failed to give satisfactory or reliable answers to an immigration officer's inquiries". This can only refer to the earlier interview conducted by Immigration Officer Gill, of which (as already stated) no record survives.
19. There was then an unexplained gap until approximately 1345 hours when Immigration Officer Jones was asked to assume responsibility for further inquiries. According to his witness statement, he reviewed the file and attempted to obtain details of the entry clearance application made by the claimant in Nigeria. He cannot recall whether he succeeded in doing so. At 1430 hours, Immigration Officer Jones telephoned the British Sociological Association and was informed that the claimant was booked to present his paper at the Manchester conference at 1650 hours that day. It was also confirmed that he had not yet paid his conference fee, but, according to Immigration Officer Jones, nonpayment did not cause him major concern.
20. At 1450 hours, Immigration Officer Jones interviewed the claimant. A contemporaneous record has been exhibited. The claimant said that he intended to travel first to Bristol to drop off some item to a family friend prior to travelling to Manchester for the conference. He stated that he did not have a phone number for the friend and had not contacted him. He said that he proposed to get a cab to Bristol and anticipated this would cost less than £10, which, as Mr Jones comments, was a significant underestimate. Asked how he intended to travel from Bristol or Heathrow to Manchester, the claimant said that he intended to do so "by flight, train or road". Asked why he had decided to travel on the day of the conference rather than previously, the claimant said he wished to save on the cost of a night in a hotel. Mr Jones noted the contrast between this remark and the claimant's apparent preparedness to stay on in Manchester, presumably in a hotel, until 25 September when he was due to return to Nigeria.
21. The claimant was then questioned about the CVs and educational certificates which had earlier been found in his baggage. He said that they were "already in his bag" and that they were kept there "for safe keeping". The interview concluded at 1555 hours. Whilst the claimant in his recent witness statement comments on Mr Jones's witness statement, he does not challenge Mr Jones's account of the interview. The claimant says, however, that he was no longer emotionally stable at this time because of the ordeal he had been through, and I accept that he must have been tired and alarmed, and this may explain why his answers were not fuller and clearer.
22. At 1605 hours, following a discussion between Immigration Officer Jones and Chief Immigration Officer McCallum, it was agreed (to use the careful wording of Mr Jones's witness statement) "that we were not satisfied that Mr Alo's purpose in travelling to the UK was not to take employment, a purpose different from that specified in his entry clearance visa". Mr Jones therefore decided to revoke the claimant's leave to enter.
23. At 1620 hours, removal directions were prepared for the next available flight back to Nigeria, to leave at 0840 hours the next morning, involving a connecting flight at Amsterdam. At 1720 hours, the refusal notice IS82B and appeal from abroad forms were served on the claimant, and the detention and removal directions were explained to him. He confirmed he understood everything. I accept the evidence of the claimant that it was he who requested the appeal forms, and this is consistent with the IS minute sheet compiled by Immigration Officer Jones. The minute sheet states that the claimant stated that he would not appeal, which is directly contrary to the witness statement of the claimant, and the fact that he made it known that he intended to appeal. It is improbable that he would have requested the appeal forms unless there was at any rate some prospect that he might appeal.
24. He was then detained pending removal, detention being authorised by Chief Immigration Officer McCallum, who decided he should be detained in the Terminal 4 holding room overnight pending his removal the next morning. He was returned to Nigeria the following day.
25. From Nigeria, the claimant appealed the decision to cancel his leave to enter. His appeal documentation included three items previously unseen by those at Heathrow:

(1) An email from the British Sociological Association of 18 May 2009, informing the claimant that the abstract he had submitted had been accepted for "poster presentation", the latter to take place from 1650 to 1720 hours.

(2) A booking form for the conference, citing a cost of £80 and where the box marked "BACS payment" has been ticked. There was no indication on the form whether the fee had actually been paid.

(3) An email from Jenny Cairns at the British Sociological Association, dated 10 October 2009, which apologised for the "horrible experience" he had at Heathrow airport, sent in response to one from the claimant where he recounted his experiences at the airport.

26. On receipt of the appeal, the matter was reviewed by the Heathrow Central Casework Unit, which decided that it did not wish to proceed with the case, and asked that the case be withdrawn. On 26 January 2010, the Tribunal notified the parties that the respondent had withdrawn the original decision and the Tribunal was satisfied that the appeal had been withdrawn.
27. The application for judicial review was received on 24 August 2010.

Unlawful Detention

(a) The correct test

28. The claim is that the claimant was unlawfully detained (and therefore falsely imprisoned) from the time of service of the IS81 form at about 0845 on 3 September 2009 until arrival back in Nigeria late on 4 September. The exact time the plane arrived and the claimant was freed from his escort is not recorded in the papers. As became apparent during the hearing, there is an alternative claim that even if the initial detention was lawful, he should have been released at about 1600 hours, shortly after his interview with Immigration Officer Jones, so that the relevant period is from then until arrival back in Nigeria.
29. There is no dispute that the burden of showing that the detention was lawful, both at the start and throughout, lies on the defendant. As stated by Lord Dyson in Lumba (WL) v Secretary of State for the Home Department [2011] UKSC 12:

"53. I turn to the position at common law. It is not in dispute that the right to liberty is of fundamental importance and that the courts should strictly and narrowly construe general statutory powers whose exercise restricts fundamental common law rights and/or constitutes the commission of a tort...

...

... All that a claimant has to prove in order to establish false imprisonment is that he was directly and intentionally imprisoned by the defendant, whereupon the burden shifts to the defendant to show that there was lawful justification for doing so...

...A purported lawful authority to detain may be impugned either because the defendant acted in excess of jurisdiction (in the narrow sense of jurisdiction) or because such jurisdiction was wrongly exercised..."

30. There is, however, a significant difference between the way the two counsel urge me to approach the question of lawful justification. Mr Waite contends that there is only a very low threshold which the defendant is required to meet in order to demonstrate that the actions of her officers in detaining the claimant were lawful. He emphasises that this is not a case in which the reasonableness of the period of detention is in dispute, but where the exercise of the power to detain itself is under challenge. Whilst the lawfulness of the length of detention is a matter which falls to be decided by the court with reference to the Hardial Singh principles (R v Governor of Durham Prison Ex p. Hardial Singh [1984] 1 WLR 704) without deference to the defendant, the exercise of the power to detain can, he says, only be challenged on the basis that it was arbitrary, which in his skeleton argument he described as "an extremely high test which the claimant is incapable of meeting in this case." He bases this contention on a single sentence in para 271 of Lord Dyson's judgment in Lumba referring to the Hardial Singh principles ("I would restrict its ambit to those circumstances") and on a passage in R (Saadi) v Secretary of State for the Home Department [2002] UKHL 41; [2002] 1 WLR 3131 in relation to the power to detain for examination contained in paragraph 16(l) of schedule 2 to the 1971 Act, which is very similar to the power purportedly exercised in the present case under paragraph 16(1A), in respect of which Mr Waite tells me he can find no decided cases:

"22. ... As the judge and the Court of Appeal stressed, para. 16 of Schedule 2 gives power to detain 'pending' examination and a decision; that in my view means for the period up to the time when the examination is concluded and a decision taken. There is no qualification that the Secretary of State must show that it is necessary to detain for the purposes of examination in that the examination could not otherwise be carried out since applicants would run away. Nor is it limited to those who cannot for whatever reason appropriately be granted temporary admission. The period of detention in order to arrive at a decision must however be reasonable in all the circumstances." (per Lord Slynn)

(italics added)

31. Mr Waite notes that, having set out this passage in his judgment in Lumba paragraph 272, and having referred to two Strasbourg judgments, Lord Dyson concluded:

"274. ... Where a person is detained deportation, the only proportionality requirement that Strasbourg imposes, if indeed it is right so to describe it, is that the detention should not be for longer than is reasonably necessary to effect the deportation. Added to this, however, is the important requirement that the exercise of the power to detain must not be arbitrary."

(italics added)

32. Building on this, Mr Waite argues that there is nothing in the facts of the present case which is capable of supporting an argument that the exercise of the power to detain was arbitrary. In his oral submissions, Mr Waite also suggested that some passages in the recently decided case Secretary of State for the Home Department v Arben Draga [2012] EWCA Civ 842 lent some modest support to his proposition, albeit dealing with different statutory provisions. At issue there was the consequence in law of a flaw in the decision making process leading up to the giving of notice to make a deportation order, and whether this made unlawful the related decision to detain under paragraph 2(2) of schedule 3 to the 1971 Act. In his judgment at paragraphs 44 and 45, Sullivan LJ set out passages from the judgments of Kennedy and Millett LJJ in Ullah v Home Office [1995] Imm AR 166, indicating a difference between the situation where there was some fundamental failing (such as no intention to deport or bad faith) as opposed to where the decision was not the right decision, or without flaw, or otherwise impervious to successful challenge by way of judicial review. Sullivan LJ (paragraph 60) himself drew a similar distinction. Mr Waite summarised the position by saying that to hold the detention unlawful, something must have gone very seriously wrong, which would involve something more than a conventional public law error. The court had to be satisfied that the exercise of the power had been arbitrary.
33. Ms Jegarajah argues that there is no proper basis for this alleged high test of arbitrariness. She relies strongly on what Keene LJ said in R (A (Somalia)) v Secretary of State for the Home Department [2007] EWCA Civ 804:

"71. It is to my mind a remarkable proposition that the courts should have only a limited role where the liberty of the individual is being curtailed by administrative detention. Classically the courts of this country have intervened by means of habeas corpus and other remedies to ensure that the detention of a person is lawful, and where such detention is only lawful when it endures for a reasonable period, it must be for the court itself to determine whether such a reasonable period has been exceeded. [italics added]

...

74. ... [T]his court is still required by s 6(1) to decide whether or not the detention of this individual is compatible or not with his rights under Article 5, because only by so doing can the court ensure that it is acting lawfully. It cannot do that merely by asking whether it was open to the Home Secretary to decide that the length of detention was reasonable, as opposed to whether it was actually reasonable in the eyes of the court. ...

75. ... [T]he ultimate decision is, in my judgment, for the court. I therefore would reject the Secretary of State's submission as to the limited role of the court in cases such as this."

34. This reasoning was then followed in Anam v Secretary of State for the Home Department [2010] EWCA Civ 1140, where Black LJ said:

"77. I take A (Somalia) as binding authority that the court must assume the role of primary decision maker when considering the lawfulness of detention rather than simply reviewing the decision of the Secretary of State along traditional public law lines. This disposes of the Appellant's argument that Cranston J was wrong to conduct his own assessment of the justification for the Appellant's detention as if he were the primary decision maker..."

35. Ms Jegarajah places particular reliance on ID & Others v Home Office [2005] EWCA Civ 38, which concerned immigration officers' powers under schedule 2 of the 1971 Act. She relies on what Brooke LJ said:

"55. There are two other preliminary matters that may also be dealt with quite quickly. The first is that if it is established that any of these immigration officers made decisions in a manner which fell outside the jurisdiction conferred on them by the 1971 Act, then their decisions would have been ultra vires and unlawful (see Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 171B–F and 195 A–C ...)

56. The second is that there is on the face of it nothing in the slightest bit peculiar about an individual bringing a private law claim for damages against an executive official who has unlawfully infringed his private rights ...

...

113. ... [O]n the proper interpretation of Schedule 2 to the 1971 Act the courts will be just as zealous to scrutinise any complaints of an unlawful infringement of liberty in that context than they would in any other case where such a complaint is made. ECHR Article 5, after all, protects 'everyone' (see para 28 above), and in Saadi, where the legality of Schedule 2 detentions was in issue, there was no hint of any suggestion that Article 5 did not apply at all.

...

119. ... [I]n Ullah Kennedy LJ appears to have taken for granted that a pre-Anisminic approach to the decision of an officer of the executive was appropriate in the post-Anisminic world without explaining why..."

36. Ms Jegarajah contended that the defendant was developing an argument to offset Lumba and erect a false distinction between the position of those being detained pending removal (as in Lumba) and those, as here, who were detained pending examination. It was, she said, emphatically wrong to suggest that the high test of arbitrariness had to be met.
37. I reject the approach suggested by Mr Waite, and I consider that the authorities upon which he relies provide scant support for what he puts forward. In Saadi, Lord Slynn was considering a different issue, as shown by the two sentences in paragraph 22 of his speech, which I have italicised above. Similarly, I do not accept that the final sentence in paragraph 274 of Lord Dyson's judgment in Lumba, which I have similarly italicised above, was intended to confine challenges in immigration detention to cases where arbitrary conduct could be shown. On the other hand, care is needed in approaching the authorities relied upon by Ms Jegarajah. A (Somalia) was principally addressing the question of length of detention, rather than the decision to detain. In R (LE (Jamaica)) v Secretary of State for the Home Department [2012] EWCA Civ 597, Richards LJ has suggested the need to approach what Black LJ said in Anam "with a degree of caution", though I do not think this affects its weight in the present context. In ID & Others v The Home Office, what was in issue was whether the Secretary of State and the immigration officers were immune from a claim for damages, rather than the issue with which I am presently concerned. Nevertheless, provided the court pays due regard to the extent of the statutory powers under which the claimant was purportedly detained, I am satisfied that it is also for the court to scrutinise the justification advanced by the defendant as it would in any other case where the issue of unlawful detention arises. I do not consider that the action taken by the officers concerned can only be challenged on grounds of arbitrariness, which would represent a significant shifting of the burden of proof and application of an even higher test than Wednesbury unreasonableness. I should add that Ms Jegarajah does stigmatise those actions as arbitrary, but it is not necessary for her claim to succeed that it meets that high test.

(b) The claim in respect of the first period of detention from about 0845 to 1600 hours

38. Ms Jegarajah's starting point is that none of the answers given by the claimant on arrival to Customs Officer Wiltshire or Immigration Officer Gill should have led to the issue of the form IS81 and the detention of the claimant at about 0845 hours. She says that the references to Bristol and to his cousin being here were plainly misunderstood, and that if there was any doubt about the fact that he was going to Manchester, it would have been easy to telephone the conference organisers, which was in fact delayed until 1430 hours, when Immigration Officer Jones first established that the claimant was programmed to present a paper to the conference that day. Ms Jegarajah says that the reasons for suspecting that the claimant was importing drugs were fanciful, including the fact that he had not flown in directly from Nigeria, but had come via Amsterdam, and particularly the reference to his distended stomach. Initially the allegation was that the claimant had been targeted because of his racial origin, but that claim is no longer pursued, and in any event there is no evidence whatsoever for it. Ms Jegarajah does not allege any procedural failures in relation to cautions and the admissibility of answers, but she does point to the unequal position between the claimant and his questioners, and says this should have been taken into account and should be taken into account by the court in assessing the lawfulness of the detention. She says that the detention by Immigration Officer Gill was a device to enable customs officers to question the claimant for a longer period in order to obtain evidence for the purposes of an alleged offence, and that in any event the decision was disproportionate to the need to maintain effective immigration control.
39. Mr Waite argues that there were reasonable grounds for the defendant's decision to detain the claimant, first at 0845 hours (immigration powers) for examination for the purpose of establishing whether his leave should be cancelled on the grounds that his purpose in entering the United Kingdom was not to enter as a visitor, hence the NSVG on the IS81 proforma; and then, following the X-ray, by arrest (under customs powers) at 0911 hours "on suspicion of internal concealment" (the description in the custody record).
40. I reject the suggestion that service of the IS81 was a device or that there was any unlawful confusion of the roles of immigration and customs powers. I am entirely satisfied that the initial detention was justified under paragraph 2A(2A) of schedule 2 to the 1971 Act, since the answers given, whilst no doubt in part caused by the claimant's confusion and tiredness after a long journey, plainly required further investigation. I do not consider that the customs and immigration officers were bound immediately to telephone to Manchester to verify the claimant's account that he was going to Manchester. It was almost inevitable in these circumstances that his leave to enter would be temporarily suspended, and that decision is not separately challenged. Paragraph 16(1A) of schedule 2 to the 1971 Act is an express power to detain a person whose leave to enter has been suspended pending completion of his examination under para 2A(2A)(7).
41. The reasons given by Customs Officer Wiltshire were sufficient to justify her wish to X-ray the claimant, and it is nothing to the point that (to quote from the claimant's witness statement) "I consider it derogatory to be described as having a large and distended stomach". His witness statement was in reply to that description in Customs Officer Wiltshire's witness statement, but there is no evidence that anything was said to the claimant about his distended stomach at the time. It was simply one of the reasons noted by the customs officer for suspecting that he was a drug carrier and wanting to undertake an X-ray.
42. Ms Jegarajah is critical of the interpretation of the X-rays as appearing to show foreign bodies in the claimant's stomach. She described the X-ray and the analysis of the X-ray as patently flawed and incompetent and an inadequate basis for detention. I disagree with her conclusion. Although it was later found that the claimant was not in fact carrying any packages (or this would have shown up in the urine and excreta tests), the only evidence is that the customs officer arrested the claimant in the belief, confirmed by what she had seen on the X-rays, that he was engaged in smuggling drugs. There is no basis for claiming that the arrest was unlawful. It was lawfully made under section 138 of the Customs and Management Act 1979.
43. There then followed two distinct time-periods. During the first, from arrest until return to Terminal 4 and handover to the immigration officers, the claimant was undertaking a urine test, and, as it happens, providing material for an excreta test. These were then being analysed. There was nothing unlawful in his remaining under arrest until 1150 hours, or in his return thereafter at 1251 hours to immigration. I reject the contention of Ms Jegarajah that the customs officers were trying to hide the error they had made by having the claimant removed, in the hope that he would not trouble to appeal from out of country. There is simply no basis for this allegation. I also reject her assertion that there was certainly no good or lawful reason to transfer him into immigration custody. The immigration officer's own examination under paragraph 2A(2A) of schedule 2 in relation to the purpose for which the claimant was entering the country had been interrupted by the X-ray and arrest and was still incomplete, and the claimant remained under detention under paragraph 16(1A) of the 1971 Act. A copy of form IS91R was served on him stating that there was insufficient reliable information to decide on whether to grant him temporary admission or release, and the reason given was that he had failed to give satisfactory or reliable answers to an immigration officer's enquiries (which must refer back to the earlier questioning by Immigration Officer Gill).
44. The second time-period was from 1251 hours until approximately 1600 hours, one hour of which was absorbed by the interview undertaken by Immigration Officer Jones, which resulted in the decision to cancel his entry clearance. The interview was preceded by Immigration Officer Jones's telephone conversation with the British Sociological Association. Although Ms Jegarajah argued that the claimant should no longer have been detained after his release from arrest at 1150 hours, she did not argue that if she was wrong on that, the further investigation and interviewing was unduly prolonged. It was not.
45. Accordingly, the claim for unlawful detention in respect of the whole period from 0845 until about 1600 hours is misconceived and must fail.

(c) The claim in respect of the second period of detention from about 1600 hours until return to Nigeria

46. The witness statement of Immigration Officer Jones says that:

"My principal concerns were that he had not provided a credible explanation for the presence of a number of CVs and educational certificates in his possession and his poor planning in relation to his onward travel which led me to doubt he was being honest about his intentions."

However, in the Notice of Refusal of Leave to Enter (form IS82B) no mention was made of the educational certificates nor of poor planning about travel arrangements. The only matter relied upon as the reason for the conclusion that the claimant intended to work in contravention of his visa was the CVs:

"... [Y]our purpose in arriving in the United Kingdom is to work, which is different from the purpose specified in the entry clearance. I have reached this decision because you have brought several copies of your CV with you in the UK. ... Furthermore, in view of the fact that there is evidence that you intend to breach the conditions of your entry clearance, I am not satisfied that you do not have a permanent desire or intention to breach the terms of your visa. I am therefore cancelling your leave to enter."

47. Ms Jegarajah referred me to the decision in Secretary of State for the Home Department v Boahen [2010] EWCA Civ 585 at paragraph 38 where it was stated:

"The importance of identifying the true ground for the decision to cancel lies in the fact that an immigration officer must be taken to have justified the exercise of a power of cancellation on the grounds stated in the IS 82A notice. If the stated ground was unsustainable then the decision was unlawful despite the existence of an alternative ground on which the same decision could have been reached."

48. Ms Jegarajah points out that genuineness of his engagement at the Manchester conference had been cleared up on the telephone, and that the claimant had not been asked any follow-up questions about the CV (the same is true also of the educational certificates) following his answer that they were already in his bag for safekeeping. She argues that the three additional items of evidence that accompanied the claimant's later appeal (and which are said to have caused the defendant to decide not to resist the appeal) did not in fact change or add to the position known to the immigration officers at 1600 hours. If it was appropriate not to resist the appeal, it must have been inappropriate to cancel the leave to enter.
49. Mr Waite argued that decisions invariably have to be taken on the basis of limited information and under significant constraints of time, and that the consequence of doing otherwise would be to prolong the individual's detention at the airport, which would plainly be undesirable. He accepts that there is no evidence that the final decisions were based in any way on the claimant's initial reference in interview with Customs Officer Wiltshire that he would stay one night in Bristol, which she had interpreted as a statement that he intended to spend the night in Bristol before travelling on to Manchester, but suggests this serves to reinforce the decision, as did the claimant's statement that a cab to Bristol would cost under £10. Mr Waite says that the question of the family friend at Bristol remained unanswered. Most importantly, the defendant had failed to offer a satisfactory reason why he had brought with him several copies of his CVs and educational certificates. Mr Waite emphasises that the claimant did not at any stage assert that he intended to circulate the CVs to other academics for the purpose of discussing collaborative projects, and that immigration officers can only be expected to act on the information which they are given at the relevant time. That accords with what Immigration Officer Jones stated in his witness statement:

"At no point did [the claimant] say to me that he had brought them in order to demonstrate his academic credentials at the conference. That would have been a more credible explanation and may have altered my assessment of Mr Alo's case. However, that is not what he said. We always ask open-ended questions so that people have every opportunity to explain themselves. In my view, Mr Alo failed to give a credible explanation for the presence of the CVs and educational certificates in his bag."

50. Mr Waite also argues that it is immaterial that, following review of the case in the light of the grounds of appeal and additional materials submitted, it was later concluded that the claimant was entering the United Kingdom for the purpose stated in his entry clearance such that the refusal of leave should be withdrawn. The issue for the court was whether there were reasonable grounds for the defendant's decisions at the time when they were taken.
51. I have found this the most difficult aspect of this case. I am sympathetic to what Mr Waite says about constraints of time and the need not to prolong detention unnecessarily. I also accept that if there were reasonable grounds for each of the defendant's decisions (whether to detain pending completion of the examination, or thereafter to detain pending a decision on whether to cancel leave to enter), this will render the detention lawful under paragraph 16(1A)(a) and (b) of schedule 2 to the 1971 Act.
52. On the other hand, the telephone call had established the veracity of the claimant's statement that he was programmed to speak at an academic conference in Manchester later in the day. In the interview which followed, there was wholly inadequate questioning about the two matters which (according to Immigration Officer Jones's witness statement) led to his agreement with Chief Inspector McCallum "that we were not satisfied that Mr Alo's purpose in travelling to the UK was not to take employment, a purpose different from that specified in his entry clearance visa" and which led him to take the decision to revoke the entry clearance visa. Once the claimant had said that the CVs and educational certificates were in his bag for safekeeping, the claimant should have been asked what he intended to do with them. That would have been an "open-ended question" and would have ensured that the claimant did "have every opportunity to explain [him]self", to use Immigration Officer Jones's own phrase. So far as "poor planning in relation to his onward travel", it cannot be doubted that a person arriving at Heathrow at 0830 hours has ample time to get to Manchester by 1600 hours (which would allow 50 minutes before the paper was to be delivered). The claimant was not, therefore, arriving unduly late, and it was unreasonable to expect a disembarking overseas passenger to have already determined a precise route and timetable for the journey. I note also the curious double negatives that appear both in Immigration Officer Jones's witness statement and in the form IS82B. It was, in my opinion, wholly unreasonable, illogical and unfair to have drawn the conclusion that the claimant's "purpose in arriving in the United Kingdom is to work", as stated in the form IS82B. The claimant's answers on these matters were not such as should have satisfied immigration officers that there had been "a change of circumstances since his visa had been issued so as to remove the basis of the holder's claim to admission", the test under rule 321 of the Immigration Rules. That mine is not an aberrational view is evident from the considered decision taken some months later on the defendant's behalf not to contest the claimant's appeal.
53. The defendant has not succeeded in justifying the detention of the claimant in the late afternoon and overnight. He ought to have been released from detention at approximately 1600 hours, by which time the examination under paragraph 2A(2A) of schedule 2 to the 1971 Act had been concluded. Therefore, the claim for unlawful detention succeeds to this limited extent.

Misfeasance in public office

54. In Muuse v Secretary of State for the Home Department [2010] EWCA Civ 453, the Court of Appeal allowed the defendant's appeal against a judicial finding that unlawful detention had arisen from misfeasance in public office by officials in the Home Department. In paragraph 54 of his judgment, Thomas LJ said that:

"The judge found that there was no targeted malice. It was common ground therefore that that Mr Muuse had to establish that those acting for the Home Secretary detained him:

i) In the knowledge of, or with reckless indifference to, the illegality of their actions.

ii) In the knowledge of, or with reckless indifference to, the probability of causing injury to him."

55. In respect of the first period to 1600 hours on 3 September, where I have found that the detention was lawful, no possibility of a claim for misfeasance in public office can arise.
56. In respect of the second period from 1600 hours, there would be no problem in establishing knowledge of the probability of causing some injury to the claimant. But I have seen no evidence whatever to show that there was any knowledge of, or reckless indifference to, the illegality of the immigration officers' actions. Indeed, in her oral submissions Ms Jegarajah conceded that her harsher criticisms of those who had detained the claimant related to the first period, and she did not seek to identify anything in respect of the second period to support her claim under this head. I have seen nothing suggesting any absence of good faith in the immigration officers concerned at any time, and it is regrettable that a claim was ever brought under this head.

Article 5

57. Article 5 of the European Convention on Human Rights provides:

(1) Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty save in the following cases...:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence...;

...

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country ...;

...

(5) Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."

58. The claimant seeks a declaration that his detention on 3 to 4 September 2009 contravened Article 5(l), and therefore gives rise to a claim for compensation under Article 5(5).
59. So far as concerns the detention until 1600 hours on 3 September 2009, it falls within exception (f) and for some part also within exception (c). Therefore the claim fails.
60. So far as concerns the detention after 1600 hours on 3 September 2009 and until return to Nigeria, I have found that this was unlawful and it therefore does not have the benefit of exception (f). Therefore the claimant is entitled to a claim for compensation under Article 5(5) in respect of that period.

Article 3

61. Article 3 provides:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

62. The claimant claims that he was, throughout the period of his detention, treated to "inhuman or degrading treatment" and is therefore entitled to compensation. Ms Jegarajah relies upon what was said in R v Secretary of State for the Home Department ex parte Limbuela [2005] UKHL 66 para 54:

"...[T]he European Court has all along recognised that ill-treatment must attain a minimum level of severity if it is to fall within the scope of the expression 'inhuman or degrading treatment or punishment': ... In Pretty v United Kingdom 35 EHRR 1, 33, para 52, the court said:

'As regards the types of "treatment" which fall within the scope of article 3 of the Convention, the court's case law refers to "ill-treatment" that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of article 3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.'

It has also been said that the assessment of this minimum is relative, as it depends on all the circumstances of the case such as the nature and context of the treatment or punishment that is in issue. The fact is that it is impossible by a simple definition to embrace all human conditions that will engage article 3."

63. Ms Jegarajah relies on the following matters:

(a) injuries caused to the claimant by handcuffing on the way to the Colnbrook IRC;

(b) the feeling of being pressurised, particularly after being handcuffed, to provide a stool and urine sample;

(c) having to spend the night of 3 September in the holding room at Heathrow Terminal 4, as opposed to in residential accommodation, for example in the Colnbrook IRC;

(d) the humiliation of the whole experience, described in the claimant's witness statement as "harrowing and traumatic" and as an "ordeal".

64. Mr Waite initially submitted that there could be no Article 3 claim unless the detention was unlawful. That is not correct. For example, prisoners and others in detention can obtain redress under Article 3: see Keenan v United Kingdom (suicide of mentally ill prisoner) (2001) 33 EHRR 38 and Kudla v Poland (conditions of pretrial detention) (2002) 35 EHRR 11. Mr Waite did not persist in the submission. He drew attention to the records which showed that any marks from handcuffs were either slight or non-existent; to the standard procedures for a urine test, to which the claimant had expressly consented, and to the fact that he was not compelled to undergo an excreta examination; and to the absence of any evidence relating to conditions in the holding room and in particular any suggestion that they were severely substandard. Even if the claimant's case was taken at its highest, it did not come close to engaging Article 3.
65. I agree with Mr Waite's submissions, and find it surprising that an Article 3 claim has been made in this case, where standard procedures were applied, there was no actual bodily injury (save the marks from the handcuffs), and where any loss of dignity and embarrassment suffered by the claimant, genuinely no doubt, fell far short of "breaking [his] moral and physical resistance" (see Pretty).
66. Therefore the claim under Article 3 fails.

Conclusion

67. The claimant is entitled to declarations that:

(1) He was unlawfully detained on 3 to 4 September 2009 from approximately 1600 hours until some unknown time late on the following day when the flight landed in Nigeria.

(2) In respect of the same period his rights under Article 5(l) of the ECHR were contravened and he is entitled to compensation under Article 5(5).

68. Unless damages can be agreed, there will need to be an assessment hearing in relation to damages and compensation under these two heads (which cover the same period and loss).
69. The claims made in respect of (i) unlawful detention before 1600 hours on 3 September 2009; (ii) misfeasance in public office; and (iii) Article 3 of the ECHR are dismissed.
70. MR WAITE: My Lord, I am grateful. My Lord, there is an application for permission to appeal in relation to your conclusions that the second period of detention was unlawful. My Lord, I put it in brief terms. These are statutory provisions which have not, to my knowledge, been considered by a court before. They relate to the powers of an immigration officer to detain at the border, so an issue of public importance, and the dispute arises from observations in a case in the Supreme Court in Lumba. So, my Lord, in my submission there is an arguable point of law and there is an issue of public importance which would justify the grant of permission to appeal.
71. It is important to the Secretary of State obviously that the legal test for deciding the lawfulness of detention at the airport is resolved by the courts, and I put it in those terms.
72. THE DEPUTY JUDGE: Any observations on that matter, Ms Jegarajah?
73. MS JEGARAJAH: Yes, that your Lordship has dealt with the authorities concerning this issue and the authorities are not particularly controversial. The law is well settled, and for those reasons there is no public importance issue raised in this case in relation to that point.
74. THE DEPUTY JUDGE: Mr Waite, it seems to me that the law is fairly straightforward in this area and I leave it to you, therefore, to persuade the Court of Appeal that it is an appropriate case for leave.
75. MS JEGARAJAH: My Lord, I should have raised this perhaps in the proceedings before, but we seek an anonymity order in this case pursuant to section 11 of the Contempt of Court Act 1981, because this is a case where my client can be very clearly identified because of his occupation in the first few paragraphs of your Lordship's judgment.
76. THE DEPUTY JUDGE: Why does it matter? He has won on an important matter, what ground is there for anonymity?
77. MS JEGARAJAH: It is a case that is likely to be reported and it means that the treatment, whatever your Lordship has thought of that treatment, that that treatment would be there for all to see and will affect his standing in his community.
78. THE DEPUTY JUDGE: It may well his improve his standing that he is found not to have been carrying drugs and that it was found that his detention was unlawful. I do not see anything special about it.
79. MS JEGARAJAH: It is just not something that he would want publicised to the world, that this is the treatment that he faced and he engaged in this litigation. He just wants to restrict or preserve the privacy of his life and it would be disproportionate, in my submission, for him to be referred to by his name. It would be wholly proportionate for him to be referred to by initials.
80. THE DEPUTY JUDGE: You had better take me to the statutory provision you are relying on.
81. MS JEGARAJAH: Section 11 of the Contempt of Court Act. I have not produced it.
82. THE DEPUTY JUDGE: This matter has been able to be reported all week.
83. MR WAITE: My Lord, I think you need to be careful because if this matter was going to be raised it should have been raised on notice because, for example, the Supreme Court in Lumba I know decided that those cases should not be anonymised. There is case law on this and it does deal with the obligation of the court to conduct open proceedings. I cannot inform you more than that, but I would not want you to make an anonymity order without sight of the law on this question.
84. THE DEPUTY JUDGE: Yes, that is what I am just about to --
85. MR WAITE: My Lord, I can say that in detention cases, they were routinely anonymised until Lumba. So Lumba was initially WL and it was the Supreme Court that decided it should not be anonymised. I cannot give you any more details on that as to why.
86. THE DEPUTY JUDGE: Yes, well I can readily understand a special position where there are people who are suffering from mental disabilities and all sorts of other matters.
87. Ms Jegarajah, I reject your application. No special reason has been put forward to me for making an order under section 11 of the Contempt of Court Act 1981. I bear in mind what is said in the White Book at page 1312 citing as authority R v Arundel Justices [1985] 1 WLR 708 that a court has no power under section 11 to prohibit the press from publishing the name of a defendant if earlier in the proceedings that name has not been withheld from the public. This case, which you said was going to take half a day in fact even for your opening took well in excess of twice that long, has been in the public domain with no previous application having been made and there was a previous oral application before Cranston J where I do not understand any such application was made, and it is simply too late.
88. I express no decided view on whether if the application had been made at an appropriate time it might have succeeded, save to say that I am rather doubtful.
89. MS JEGARAJAH: My Lord, finally I seek permission to appeal to the Court of Appeal in relation to those matters where your Lordship found against me, namely that the claim in relation to the first period of detention from 0845 to 1600 hours fails. In my submission, applying the law to the issue of justification, the Secretary of State has not made good her case. I also submit that the submissions relating to misfeasance in a public office and submissions in relation to Article 3 also are arguable and raise issues of public importance, and I would ask for permission.
90. THE DEPUTY JUDGE: Ms Jegarajah, you know the test is whether I consider the appeal has a realistic prospect of success. I am bound to say it does not seem to me that there is a realistic prospect of success on any of the matters you have raised. Again, as with Mr Waite, you will have to persuade the Court of Appeal to grant you permission.
91. MS JEGARAJAH: Thank you.
92. THE DEPUTY JUDGE: What about costs?
93. MR WAITE: My Lord, in my submission the Secretary of State should receive her costs in respect of defending the claims for breach of Article 3, misfeasance in public office, the claim under the Race Relations Act, and the claim in relation to the first period of detention which was a discrete period of detention maintained for discrete reasons. My Lord, in the light of your observations in the judgment, I submit that the costs in relation to the claims for misfeasance in public office, breach of Article 3 and, indeed, the Race Relations Act, should be on an indemnity basis because they were improperly brought and there was no evidence to support them.
94. THE DEPUTY JUDGE: But they did have leave: permission was given by Cranston J.
95. MR WAITE: My Lord, yes. I think the key point is that permission was given if you look at it at that stage there had been no explanation by the Secretary of State at all. All the Secretary of State had relied on is the time point. That is why permission was given, and the critical point -- and it may be that the appropriate course is to award indemnity costs from a particular point -- but the critical point is that a full explanation was given on 12 April and yet those claims were maintained. So it may be that the submissions should be that indemnity costs would be in respect of the hearing only.
96. I appreciate that the Race Relations claim was not pursued at the hearing itself, but it was discontinued without notice to the Secretary of State in the course of oral argument and after the Secretary of State had drawn statutory provisions to my learned friend's attention which showed that discrimination on grounds of nationality was not actionable in the context of Immigration Act powers.
97. So, my Lord, perhaps the appropriate course would be costs in relation to all four of those claims -- that is the breach of Article 3; misfeasance in public office; Race Relations Act; and the first period of detention -- and that the costs of the hearing in relation to breach of Article 3, misfeasance in public office and breach of the Race Relations Act, should be on an indemnity basis. I accept that the Secretary of State will be liable to pay the claimant's costs arising from the challenge to the second period of detention.
98. THE DEPUTY JUDGE: What do you say, Ms Jegarajah?
99. MS JEGARAJAH: I drafted the pre-action protocol letter in this case and it is in the claimant's judicial review bundle. All of the claims were set out very fully by reference to case law. When it came to the acknowledgement of service, the only issue that the Secretary of State concentrated on was the issue of delay. When we were granted permission by Cranston J, there was no limitation on any of the grounds that were advanced. The bundle from the Secretary of State was produced in April 2012, three years after the representations and judicial review had been filed. If your Lordship actually examines the amount of the pleadings that relate to all of these issues, they do not cover any more than a few paragraphs in the defendant's grounds.
100. The issue in relation to the Race Relations claim, as my learned friend says, the statutory provisions were brought to my attention this week. So really, all of those, the subject matter of the Secretary of State's application is insubstantial in terms of the time that has been spent by the Secretary of State and those instructing in dealing with the matter and the Secretary of State has only very, very lately, several years later and bearing in mind these are issues concerning liberty and reputation, has sought to address those matters. So for those reasons exceptionally we would ask for our costs in relation to the whole matter, especially because the issues are so inextricably linked.
101. THE DEPUTY JUDGE: Thank you.
102. Anything more you want to say, Mr Waite?
103. MR WAITE: My Lord, no.
104. THE DEPUTY JUDGE: Whilst I readily concede that the claimant has not succeeded on all its points, I do not think this is an appropriate case to make an order that the Secretary of State herself should have her costs of the matters on which she was successful, nor particularly on an indemnity basis.
105. It seems to me that the appropriate course is to reduce markedly the costs to which the claimant is entitled and in all the circumstances it seems to me that a proper order is that the claimant should have his costs against the Secretary of State, but limited to one-third of the claimant's costs.
106. MS JEGARAJAH: Thank you very much. One other matter, my Lord. Is it possible for your Lordship to make an order to expedite the transcript of the judgment?
107. THE DEPUTY JUDGE: I hope it will not take terribly long. I will just look to the shorthand writer as to how long it is likely to be. We are in vacation and the Olympic period does no doubt make some difference.

(Aside to the shorthand writer)

108. What I am going to ask is that if possible the shorthand writer gets back to me with a draft by the end of next week. I will make an order that your time to apply for any permissions to appeal to the Court of Appeal is not to start running until receipt of the transcript of the judgment.
109. MS JEGARAJAH: I am very grateful, my Lord.
110. MR WAITE: I am grateful.