Francis, R (on the application of) v Secretary of State for the Home Department & Anor

This is an appeal against the order of His Honour Judge McKenna, sitting as a Deputy Judge of the High Court, dismissing the appellant’s claim for damages for false imprisonment arising from his detention pending deportation.

The appellant, David Francis, is aged 34. On 13^th March 2007 he was stopped by immigration officers on his return from Amsterdam, having been refused entry into the Netherlands for using a counterfeit British passport bearing his name. In due course he pleaded guilty at Chelmsford Crown Court to a charge of possessing a false passport intending to use it to establish registrable facts about himself and on 16^th July 2007 he was sentenced by His Honour Judge Hayward Smith Q.C. to 18 months’ imprisonment and recommended for deportation. It appears that in the course of those proceedings he admitted that he came from Jamaica.

I am indebted to Judge McKenna for the following account of the subsequent course of events which I have derived almost entirely from his judgment.

On 12^th September 2007 the appellant was served with a notice of liability to deportation. He responded on 16^th September 2007 saying that he should not be deported because he was a British national and giving certain information about his date and place of birth. On 8^th October 2007 he was interviewed by officers of the UK Border Agency to whom he gave similar information. However, the Secretary of State was not satisfied with what he had said and on 15^th November 2007 he gave the appellant notice of his decision to make a deportation order against him. The appellant lodged an appeal on the grounds that he was a British citizen. On 30^th November 2007 he was sent a notice of the Secretary of State’s intention to make a deportation order against him and was informed that he was liable to be detained under Schedule 3 to the Immigration Act 1971.

Having served half his sentence, the appellant was entitled to be released on licence on 4^th December 2007, but he was detained by the Secretary of State pending the making of a deportation order. In February 2008 he was interviewed for the purposes of obtaining the necessary travel document for Jamaica but failed to provide any useful information.

The appellant’s appeal against the decision to deport him was determined by the Asylum and Immigration Tribunal in April 2008. The tribunal found that he had been born in Jamaica and had entered the United Kingdom illegally in 1996, or thereabouts, and that removal would not interfere disproportionately with his rights under article 8 of the European Convention on Human Rights. It therefore dismissed his appeal. The appellant did not seek to challenge the tribunal’s decision and on 21^st May 2008 he was served with a formal deportation order. However, the appellant has resolutely refused to accept the tribunal’s finding and, contrary to what he said at the Crown Court, continues to assert that he was born in this country and has lived here all his life. He says that he has never been to Jamaica. This dispute over his nationality lies at the root of the present proceedings.

On 28^th September 2011 the appellant issued proceedings for judicial review seeking a declaration that his continued detention was unlawful, a mandatory order directing his release and damages for false imprisonment. He was eventually released on bail on 29^th September 2011, subject to a number of conditions designed to ensure that he did not abscond. His claim for judicial review and damages was tried by Judge McKenna sitting as a Deputy Judge of the High Court.

Before the judge the appellant’s argument addressed separately three periods of detention. The first was the period from 4^th December 2007 to 9^th September 2008, during which he alleged that he had been detained pursuant to a policy of detaining all foreign national prisoners liable to deportation at the expiry of the custodial element of their sentences, regardless of their individual circumstances. The second was the period between 9^th September 2008 and 29^th September 2009, during which he alleged that his continued detention had not been reviewed by anyone who had authority to direct his release, contrary to the Secretary of State’s policy that all detainees should have their detention reviewed regularly with a view to the possibility of release. The third was the period from 29^th September 2009 to 29^th September 2011, during which he alleged that he had been detained in contravention of the principles set out in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 W.L.R. 704. The appellant sought only nominal damages in respect of the first two periods, recognising that even if his detention had been unlawful he would have been lawfully detained in any event under powers available to the Secretary of State. He sought substantial damages in respect of the third period.

In respect of all three periods the Secretary of State relied on the provisions of paragraph 2(1) of Schedule 3 to the Immigration Act 1971, which has been described as a “statutory warrant” and which she submitted provided sufficient authority for the appellant’s detention during all three periods to render it lawful. In addition, in relation to the second period she contended that the policy in question was lawful, because it did not make the appellant’s release impracticable or impossible, and had been lawfully applied in his case. In any event, she submitted, a failure to comply with the policy did not render his detention unlawful. In relation to the third period the Secretary of State also contended that the appellant’s detention had been prolonged by his own failure to co-operate by refusing to accept that he was a Jamaican national and that throughout that period there had been a sufficient prospect of removal within a reasonable time to justify his continued detention.

The judge accepted most of the Secretary of State’s submissions. Having considered the decisions of this court in WL (Congo) v Secretary of State for the Home Department [2010] EWCA Civ 111, [2010] 1 W.L.R. 2168 and R (Muqtaar) v Secretary of State for the Home Department [2012] EWCA 1270, [2013] 1 W.L.R. 649 and a number of decisions at first instance (to which it will be necessary to refer in more detail at a later stage), as well as the decisions of the Supreme Court in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 A.C. 245 and Kambadzi v Secretary of State for the Home Department [2011] UKSC 23, [2011] 1 W.L.R. 1299, he held that the appellant had been detained throughout under authority ultimately derived from paragraph 2(1) of Schedule 3 to the Immigration Act 1971 and that his detention had therefore been lawful. However, the judge also made it clear that, but for the statutory warrant, he would have held that the appellant’s detention during the second period had been unlawful because the Secretary of State had failed to act in accordance with her policy. He also made it clear that, but for the statutory warrant, he would have held that the appellant’s detention during part of the third period had been unlawful, because by 1^st June 2010 any prospect of his removal within a reasonable time had disappeared.

The judge’s decision on the statutory warrant formed the basis for his decision to reject the claim in respect of all three periods of detention. The material parts of paragraph 2 of Schedule 3 to the Immigration Act 1971 provide as follows:

“2.—

(1)

Where a recommendation for deportation made by a court is in force in respect of any person, and that person is not detained in pursuance of the sentence or order of any court. . . he shall . . . be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary of State directs him to be released pending further consideration of his case . . .

(2)

Where notice has been given to a person . . . of a decision to make a deportation order against him and he is not detained in pursuance of the sentence or order of a court he may be detained under the authority of the Secretary of State pending the making of the deportation order.

(3)

Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless . . . the Secretary of State directs otherwise).”

Mr. Goodman submitted on behalf of the appellant that any detention of a person against his will must be justified by law. If it cannot be justified, the tort of false imprisonment is committed and there exists a right to recover damages. That fundamental principle was not in dispute; the question in this case, however, is whether the detention of the appellant was justified by law during all or any parts of the three periods I have identified. Mr. Goodman, basing himself principally on the decisions in Lumba, Kambadzi and Muqtaar, submitted that the lawfulness of detention may be vitiated by any public law error that has a sufficiently close bearing on it and that in the present case the application of a blanket policy of detaining all foreign national prisoners and a failure to review the appellant’s detention in an effective manner undermined the lawfulness of his detention during the first and second periods. As to the third period, he submitted that the Hardial Singh principles apply to detention under sub-paragraph (1) just as much as to detention under sub-paragraph (2) and that therefore on the judge’s findings the appellant’s detention during the third period was also unlawful.

Mr. Tam Q.C. for the Secretary of State was prepared to accept that in cases where the Secretary of State is given a discretionary power to detain (as in cases falling within sub-paragraph (2)), a public law error may render the detention unlawful, at any rate if it has a direct bearing on the decision to detain. He also accepted that in cases where the Hardial Singh principles apply the detainee will be entitled to require the Secretary of State to exercise her power to order his release. He submitted, however, that in the present case any public law errors committed by the Secretary of State in relation to the appellant’s detention during the first and second periods did not undermine the statutory authority for, and therefore the lawfulness of, the appellant’s detention. Similarly, in relation to the third period the application of the Hardial Singh principles did not automatically render his detention unlawful, because they are concerned with the exercise of the power to detain rather than with its existence. In the appellant’s case the exercise of the power of detention was mandated by the statutory provisions so that his detention was lawful until such time as the Secretary of State exercised her power to release him. He accepted that if continued detention would violate the Hardial Singh principles the Secretary of State could be required to exercise her power in favour of the detainee’s release, but her failure to do so voluntarily did not render his detention unlawful.

The starting point for any consideration of these issues must, I think, be the language of paragraph 2 itself. As the court (Lord Neuberger M.R., Carnwath and Stanley Burnton L.JJ.) observed in WL (Congo), there is a difference in this respect between sub-paragraph (1) (“he shall . . . be detained) and sub-paragraph (2) (“he may be detained”). It described the consequences as follows:

“88.

. . . Sub-paragraph (1) is itself legislative authority for the detention of a FNP [foreign national prisoner] who has been sentenced to imprisonment and who has been the subject of a recommendation for deportation. If an unlawful decision is made by the Secretary of State not to direct his release, the court may quash the decision and require it to be retaken, but the legislative authority for his detention is unaffected. It follows that the FNP will have no claim for damages for false imprisonment in such circumstances.

89.

The position is different when the decision to detain is made under sub-paragraph (2) or (3). In these cases there is no lawful authority to detain unless a lawful decision is made by the Secretary of State. . . .”

It is important to note that sub-paragraphs (1) and (2) apply to different classes of persons: in the case of sub-paragraph (1), to persons in respect of whom a recommendation for deportation has been made by a court; in the case of sub-paragraph (2), to persons whom the Secretary of State has decided to deport in the exercise of her discretionary powers. Although there is no obligation on the Secretary of State to act on the court’s recommendation, it is likely that the distinction between the two classes of case explains the difference in the language used in these two sub-paragraphs. Sub-paragraph (3), however, applies to all cases in which a deportation order has been made and as such will apply to persons who have been detained under sub-paragraphs (1) and (2), as the words in parenthesis recognise.

The parenthetical language in sub-paragraph (3) uses wording similar to that to be found in sub-paragraph (1) (“and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained”), which provided Mr. Goodman with one of his principal arguments. In Muqtaar this court held that in a case where the Secretary of State’s refusal to direct release was vitiated by a material public law error, the words in parenthesis did not provide statutory authority for continued detention until release was ordered. The argument to the contrary was said to be inconsistent with the reasoning and conclusion of the Supreme Court in Lumba and Kambadzi (see paragraphs 59 and 63). All three cases concerned persons who had originally been detained under paragraph 2(2), but Mr. Goodman submitted that the position was the same in relation to a person originally detained under paragraph 2(1). He did so on the basis that the words in parenthesis in paragraph 2(3) mandated detention and were thus directly comparable to the wording of paragraph 2(1). It followed, in his submission, that, once a deportation order had been made bringing the detention within paragraph 2(3), it was not possible for the Secretary of State to rely on any statutory authority for detention that had previously existed under sub-paragraph 2(1).

In my view, however, the decisions in Lumba, Kambadzi and Muqtaar do not provide a simple answer of the kind Mr. Goodman suggested. In none of them does one find any criticism of the views expressed in paragraph 88 of the judgment in WL (Congo) or any discussion of the significance to be attached to the difference in language to be found in paragraphs 2(1) and 2(2). That is not surprising, since the point was not of any significance in those cases. However, apart from the use of the word “shall”, I do not think that there is a direct parallel between the language of paragraphs 2(1) and 2(3). The words Parliament has chosen to use must be read fairly as a whole. In paragraph 2(1) the relevant expression is “where that person is not detained he shall be detained”. In paragraph 2(3) the expression is “if already detained, [he] shall continue to be detained.” The natural meaning of the words in paragraph 2(3) (and the meaning which in my view best gives effect to the purpose of paragraph 2 as a whole) is that if the person in question has been detained, whether under sub-paragraph (1) or (2), his detention is to continue on the same basis.

The only authority that was drawn to our attention in which detention under paragraph 2(1) was accepted to have been rendered unlawful by reason of a failure on the part of the Secretary of State to apply a relevant policy was R (OM) v Secretary of State for the Home Department [2011] EWCA Civ 909. In that case the applicant had been recommended for deportation following her conviction of offences of child cruelty and breach of bail, for which she had been sentenced to 12 months’ imprisonment. The applicant was detained under paragraph 2(1) notwithstanding the Secretary of State’s guidance to caseworkers which stated that those suffering from mental illness should be considered suitable for detention only in very exceptional circumstances. The applicant brought proceedings claiming that her detention was unlawful because the Secretary of State had failed to take into account the policy relating to mental illness. On the basis of Lumba the court accepted that, where a public authority has power to detain but exercises that power in breach of the principles of public law, the detention is unlawful in so far as the breach bears on and is relevant to the decision to detain: see per Richards L.J. at paragraph 20. However, as can be seen from paragraph 21 of the same judgment, the Secretary of State conceded that the failure to take the relevant guidance into account rendered the applicant’s detention unlawful and the court was not asked to consider the question raised on this appeal. I do not, therefore, think it is possible to regard the decision as lending a great deal of support to the appellant’s case.

This makes it necessary to give closer consideration to the question whether in this case the statutory authority for detention contained in paragraph 2(1) was vitiated by public law errors. The judge identified only one such error in relation to the first period, namely, the application of an unlawful policy to detain all foreign national prisoners recommended for deportation regardless of their personal circumstances. This might also be characterised as a refusal by the Secretary of State to consider exercising her power to order the appellant’s release pending further consideration of his case.

In Lumba the Secretary of State was exercising the discretionary power of detention available under paragraph 2(2). In that context the blanket policy of detention was held to be unlawful and its application a public law error. However, Lord Dyson made it clear that not every breach of public law will render detention unlawful and so give rise to a cause of action for false imprisonment. It will have that consequence only if it bears on and is relevant to the decision to detain (see paragraph 68). In Lumba the appellant had not been recommended by a court for deportation and accordingly, having given notice of her decision to make a deportation order against him, the Secretary of State had a discretion to detain him. It is not difficult to see how the application of a highly prescriptive policy of the kind under consideration could be regarded as bearing on the decision to detain. However, the position under paragraph 2(1) is different. There is a statutory obligation to detain a person recommended for deportation pending the making of a deportation order against him, subject to a discretion in the Secretary of State to order his release pending further consideration of his case.

In the present case there was no discretionary decision to detain the appellant which was capable of being vitiated by the application of an unlawful policy. No doubt the appellant could have sought a mandatory order requiring the Secretary of State to consider exercising her discretion in favour of his release pending a decision on making a deportation order, but in my view her failure to do so did not undermine the authority for his detention, which was derived from the statute. It was suggested in the course of argument that the Secretary of State owed a duty to the appellant to consider his release as soon as he was detained or even earlier. I am unable to accept that submission and in my view it is difficult to reconcile the existence of a duty of that kind with the decision of this court in R (JS (Sudan)) v Secretary of State for the Home Department [2013] EWCA Civ 1378, in which it rejected a submission that the Secretary of State has a duty to consider making an exception to the automatic deportation provisions even before the person in question is eligible for release from prison.

However, I do not think it makes any difference to the outcome in this case. The fact remains that the decision to detain has been made by Parliament and the statute provides the authority for detention, unless and until the Secretary of State exercises the power to release him. It is that which distinguishes detention under sub-paragraph (1) from detention under sub-paragraph (2). The effect of sub-paragraph (3) is that the detention of the appellant after a deportation order has been made against him continues to be pursuant to the statutory authority. This conclusion is consistent with the observations of this court in WL (Congo) and also with a number of decisions of the Administrative Court, namely, MI (Iraq) and AO (Iraq) v Secretary of State for the Home Department [2010] EWHC 764 (Admin), Choy v Secretary of State for the Home Department [2011] EWHC 365 (Admin) R (BA) v Secretary of State for the Home Department [2011] EWHC 2748 (Admin) and R (Solomon) v Secretary of State for the Home Department [2011] EWHC 3075 (Admin), to which the judge referred.

Since Mr. Goodman on behalf of the appellant and Mr. Buley in his written submissions on behalf of the intervener both submitted that those decisions were mutually inconsistent and provided little or no support for the judge’s decision, it is appropriate that I say something about them. In MI (Iraq) and AO (Iraq) v Secretary of State for the Home Department Burnett J. drew a distinction between detention under paragraph 2(1) and detention under paragraph 2(2), based on paragraphs 88 and 89 of the judgment in WL (Congo). He accepted, however, that the power to detain, although expressed in unlimited terms, is subject to the Hardial Singh principles and for that purpose drew no distinction between the different sub-paragraphs. He held that detention which had begun under paragraph 2(1) and continued under paragraph 2(3) became unlawful, and the tort of false imprisonment was committed, when it became apparent that enforced removal could not be effected within a reasonable time. Directions were given for the assessment of damages.

In Choy v Secretary of State for the Home Department the claimant had originally been detained under paragraph 2(1); his detention subsequently continued under paragraph 2(3). Bean J. held that in a case where the claimant has been recommended for deportation the origin of the detention under paragraph 2(3) following the making of a deportation order remains the recommendation of the court rather than a discretionary decision of the Secretary of State. He acknowledged in paragraph 25 that where a claimant can point to an arbitrary and unreasonable decision on the part of the Secretary of State to refuse to release a detainee the position might be different, but subject to that he accepted the summary of the legal position given by Hickinbottom J. in R (Mahfoud) v Secretary of State for the Home Department [2010] EWHC 2057 (Admin), which repeats with some elucidation the Hardial Singh principles. The judge dismissed the claim because he was not persuaded that any of those principles had in fact been breached.

In R (BA) v Secretary of State for the Home Department the claimant, who had been detained under paragraph 2(1), challenged his detention as being in breach of the Hardial Singh principles. Miss Elizabeth Laing Q.C. sitting as a Deputy Judge of the High Court held that paragraph 2(1) imposes a duty on the Secretary of State to detain, subject to a discretion to release in certain circumstances. She appears to have considered that the parenthetical language in paragraph 2(3) had a similar effect, but found it unnecessary to decide the point. She accepted the claimant’s submission that it is implicit in paragraph 2(1) that the Secretary of State is under a duty periodically to consider whether to exercise the power to release. It was apparently common ground in that case (see paragraph 148) that the Hardial Singh principles applied to detention under paragraph 2(1). She concluded that a breach of those principles undermines the statutory authority for detention so as to render continued detention unlawful, but that a failure to comply with a relevant policy would not of itself do so (see paragraph 157).

R (Solomon) v Secretary of State for the Home Department raised similar questions. The claimant was initially detained under paragraph 2(1). Cranston J. held that once a deportation order had been made, the power to continue detention was to be found in paragraph 2(3), but that a failure of the Secretary of State to direct release was open to challenge in accordance with the Hardial Singh principles (see paragraph 36).

In my view these decisions are not mutually inconsistent, as was suggested. In each case the court recognised, following the dicta in paragraph 88 of the judgment in WL (Congo), that a distinction is to be drawn, based on the language of the legislation, between the basis of detention under paragraphs 2(1) and 2(2). In each case the court accepted that the basis of detention remains the same when a deportation order is made in respect of a person who has been detained under paragraph 2(1). In each case the court accepted that the Hardial Singh principles apply to govern the lawfulness of the detention. Insofar as there is any difference of view (although it was not essential to any of the decisions) it relates to whether a breach of the Hardial Singh principles undermines the statutory authority for detention or merely provides a basis for challenging the failure of the Secretary of State to order the detainee’s release. There is, as one might expect, a high degree of consistency between the decisions. That does not necessarily mean that they are correct, of course, but it does mean that the more recent decisions of the Administrative Court are not in disarray. The decisions also demonstrate that different judges of the Administrative Court have reached the same conclusion by the same route. None of them were bound by the relevant dicta in WL (Congo) (which on any view were obiter) and, if there had been a cogent argument to the contrary, one might have expected to see it expressed and considered.

It is convenient at this point to refer to two other decisions at first instance to which our attention was drawn. The first is R (Vovk) v Secretary of State for the Home Department; R (Datta) v Secretary of State for the Home Department [2006] EWHC 3386 (Admin), [2007] INLR 538. The first claimant, V, a foreign national, was sentenced to a short period of imprisonment and recommended for deportation. After he had served the custodial element of his sentence he was detained from November 2005 until March 2006 when he left the UK. In December 2005 he was informed of the Secretary of State’s decision to deport him and to detain him pending deportation. The second claimant, D, another foreign national, was also sentenced to imprisonment and recommended for deportation. When the time came for his unconditional release he remained in detention for just over a week before being told that the Secretary of State intended to deport him and to detain him pending deportation. Both claimants brought proceedings alleging that detention between their release dates and the date of the Secretary of State’s decision to deport them was unlawful. The Secretary of State contended that he was not obliged to make an immediate decision and that their detention was authorised under paragraph 2(1) of Schedule 3. Having considered the Hardial Singh principles, Calvert-Smith J. held that during the period before notice of an intention to deport the clamant had been given the Secretary of State did not intend to deport him and that therefore there was a breach of those principles.

The relevance of that decision to the present case lies not so much in the application of the Hardial Singh principles as in the tacit assumption that in detaining a person under paragraph 2(1) the Secretary of State is exercising a discretionary power of detention. No consideration was given to the possible significance of the difference between the language of paragraphs 2(1) and 2(2) and the judge did not have the benefit of the observations of this court in WL (Congo). In those circumstances I do not think that the decision sheds any light on the question that has arisen for decision in the later cases to which I have referred.

The second case is R (Singh) v Secretary of State for the Home Department [2011] EWHC 1402 (Admin), another case concerning the detention of a prisoner who had been recommended for deportation. Collins J., whose attention had been drawn to Hardial Singh, Vovk and Lumba, held that, although the Secretary of State need not have made a definite decision to deport, in order for detention to be lawful under paragraph 2(1) she must at least have had “a preliminary intention to implement the recommendation”, or perhaps that “a positive decision must [have been] taken that steps will be taken to put the recommendation into effect.” There was no discussion in that case, however, of the questions which arise in the present case and again, therefore, I do not think it is of any assistance in relation to this appeal.

It has not been suggested that the Hardial Singh principles have any application in relation to the first period of detention. The only question is whether the failure of the Secretary of State to consider the appellant’s release at the outset as the result of the application of an unlawful policy undermined the lawfulness of his detention, as the decision in Lumba shows would have been the case had a decision to detain him been taken under paragraph 2(2). Mr. Goodman on behalf of the appellant and Mr. Buley in his written submissions on behalf of the intervener both submitted that if the Secretary of State’s argument were correct the legislation would create arbitrary and illogical distinctions between different kinds of detainees, in particular between those in respect of whom deportation orders have been made before they have been released from their sentences, and who are thus amenable to detention only under paragraph 2(3), and those in respect of whom a deportation order has been made some time after their release, who are amenable to detention under paragraph 2(1). Mr. Tam submitted that, in so far as such differences flow from the language of the statute, they have to be accepted.

Although it can be argued that, by giving the Secretary of State a general power to direct the release of a person detained under paragraph 2(3) Parliament intended to subject detention originating under paragraph 2(1) to the Secretary of State’s discretionary power of release and thus to the same considerations as those that apply in the case of detention originating under paragraph 2(2), the language of the words in parenthesis in paragraph 2(3) do not seem to me to reflect such an intention. Rather, they seem to me designed to preserve any distinction between detention originating under the different provisions. Insofar as the position of those in respect of whom a deportation order has been made before they have completed the custodial element of their sentence differs from those in respect of whom such an order is made at a later date, that is a result of the fact that paragraph 2 does not appear to contemplate the possibility that a deportation order may be made in respect of a person who is still in prison. At all events, I do not think that such apparent anomalies as may arise can affect the clear words of the paragraph. Whether to make a deportation order while a person is still in custody is a matter for the Secretary of State.

For these reasons I am satisfied that the Secretary of State’s application of an unlawful policy of detaining all foreign national prisoners did not undermine the lawfulness of the appellant’s detention during the first period.

Throughout the period of the appellant’s detention it was the Secretary of State’s policy that a decision to release a foreign national prisoner should be taken by a senior official of the UK Border Agency, subject to the approval of the chief executive. The judge found that there was nothing to prevent the policy being implemented, but that, although concern about the appellant’s continued detention had been expressed on more than one occasion by senior officials, his case had never been referred to the chief executive to enable him to consider whether he should be released. As a result, the judge found that the Secretary of State had failed to act in accordance with the policy and that the appellant’s detention would therefore have been unlawful, had it not been authorised by the statutory provisions.

In my view the position during this period is the same as that which obtained during the first period. The failure of the Secretary of State to review the appellant’s continued detention was a public law wrong, the remedy for which was to seek an order compelling her to carry out a review of an appropriate kind. If an action for damages lay in respect of a public law wrong, no doubt the appellant would have had a claim, but it does not and the statutory requirement continued to provide authority for his detention.

Different considerations apply in relation to the third period because of the judge’s finding that by the end of April 2010 it was or should have been clear that the Jamaican High Commission would not provide the appellant with an emergency travel document without proof of identity and that the appellant was not going to provide such proof. Moreover, it was by then unlikely that any further information would emerge, despite the Secretary of State’s enquiries. As a result, there was no longer any prospect of his being removed with a reasonable time. The judge would therefore have held that the appellant’s detention after 1^st June 2010 had been unlawful, applying the Hardial Singh principles, but for the fact that he was still being detained under the statutory provisions. Those, the judge held, authorised his detention, apparently indefinitely, unless and until the court intervened.

The Hardial Singh principles reflect two important propositions relating to the exercise of an administrative power of detention. The first is that the power is to be exercised only for the purposes for which it was granted; the second, that it can be exercised only for a reasonable period. The principles derived from these two propositions were reaffirmed by Lord Dyson in paragraph 22 of his judgment in Lumba in the following terms:

“(i)

the Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

(ii)

the deportee may only be detained for a period that is reasonable in all the circumstances;

(iii)

if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention;

(iv)

the Secretary of State should act with reasonable diligence and expedition to effect removal.”

It was common ground, therefore, that the Hardial Singh principles apply in a case where the Secretary of State exercises her discretionary power to detain under paragraphs 2(2) and 2(3) of Schedule 3, but the question that arises on this appeal is whether they also apply when a person is detained under paragraphs 2(1) and 2(3). Mr. Goodman submitted that they do, either because they reflect limits implicitly placed by Parliament on the duty to detain, or because they reflect the application of an overriding principle of the common law which guards the liberty of the person. Mr. Tam accepted that the principles have a role to play in as much as they may provide the foundation for an application to the court by the detainee to require the Secretary of State to order his release, but he submitted that they did not undermine the existence of the statutory authority for detention. Although the appellant might have obtained an order for his release at any time between 1^st June 2010 and 29^th September 2011, his detention during that period was not unlawful and he therefore has no claim for false imprisonment.

It is instructive, in my view, to return to the decision in Hardial Singh itself. The case involved an application for habeas corpus by Mr. Singh who had been detained under paragraphs 2(2) and 2(3) of Schedule 3 pending his deportation. As in this case, there had been difficulties and delays in obtaining emergency travel documentation. At page 706 Woolf J. explained the position as follows:

“Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention.

In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time.”

These principles were approved and applied by the Privy Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] A.C. 97.

Although the power to detain is expressed in unlimited terms, Woolf J. seems to have regarded it as being subject to the implied limits which he there identified. That might be said to lend some support to Mr. Goodman’s argument that paragraph 2(1) is to be understood as subject to the same implied limitations. However, in R (Khadir) v Secretary of State for the Home Department [2005] UKHL 39, [2006] 1 A.C. 207 Lord Brown of Eaton-under-Heywood (with whom the other members of the House agreed) expressed the view that Hardial Singh was concerned with the exercise of the power to detain rather than its existence, thus enabling Mr. Tam to argue that in this case the power to detain continued to exist and to justify the appellant’s detention, even if his release could not lawfully be denied.

The distinction between the existence of a power to detain and the exercise of that power was important in Khadir because it was relevant to the appellant’s challenge to the Secretary of State’s refusal to grant him exceptional leave to remain. The appellant was an Iraqi Kurd who could have been returned safely to the Kurdish Autonomous Area if the means had existed to do so. However, they did not. Pending his removal the appellant was granted temporary admission, entitling him to a very basic level of state benefits and subjecting him to significant restrictions. Under paragraph 21 of Schedule 2 to the Immigration Act 1971 the Secretary of State may grant temporary admission to a person “liable to be detained” under paragraph 2(3) “while he is not so detained.” The appellant sought exceptional leave to remain, which would have enabled him to claim more generous benefits and would have allowed him to work, arguing that since the application of the Hardial Singh principles meant that he could no longer be lawfully detained, he was not a person “liable to be detained” and could not therefore be granted temporary leave to remain. Their Lordships held that so long as the Secretary of State intended to deport the appellant and there was some prospect of doing so, the power to detain continued to exist and that the appellant was therefore still a person “liable to be detained”, even though at the time he could not be subjected to continued detention.

There are obviously some circumstances in which the continued existence of the power of detention may be a matter of some importance, even if it cannot lawfully be exercised for the time being. Khadir provides one example. If the Secretary of State had subsequently discovered a means of returning him safely to the Kurdish Autonomous Area, the power to detain for that purpose could have been exercised again. Where the question is whether detention is unlawful so as to give rise to a claim for false imprisonment, however, the position is different. It does not matter for those purposes whether the power to detain had ceased to exist or whether its exercise had become unlawful. Since he accepted that the Hardial Singh principles applied in this case, Mr. Tam found himself constrained to argue that although by 1^st June 2010 the appellant could not have been denied his freedom, he could not claim damages for false imprisonment because the statute continued to provide authority for his detention. In my view that is an untenable position. The Secretary of State can justify the admitted detention only by showing that the appellant was detained under lawful authority. Either his detention was lawful, in which case the appellant’s claim fails, or it was not, in which case it succeeds.

I am unable to accept Mr. Goodman’s submission that the Hardial Singh principles give effect to an overriding principle of the common law. Parliament can, if it wishes, limit the right to personal liberty, but if it wishes to do so it must make its intention very clear. As Lord Browne-Wilkinson said in Tan Te Lam at page 111D-E,

“Although these restrictions are to be implied where a statute confers simply a power to detain “pending removal” without more, it is plainly possible for the legislature by express provision in the statute to exclude such implied restrictions. Subject to any constitutional challenge (which does not arise in this case) the legislature can vary or possibly exclude the Hardial Singh principles. But in their Lordships’ view the courts should construe strictly any statutory provision purporting to allow the deprivation of individual liberty by administrative detention and should be slow to hold that statutory provisions authorise administrative detention for unreasonable periods or in unreasonable circumstances.”

The origin of the Hardial Singh principles lies in the presumption that even if Parliament has conferred a power of detention on the Secretary of State in general terms, it did not intend that power to be unrestricted. In my view this is a highly desirable approach to take to legislation of this kind in the defence of personal liberty. I think it is possible in this context similarly to view the Hardial Singh principles as an expression of Parliament’s presumed intention to restrict the scope of the requirement for detention imposed by paragraph 2(1). In my view that is a surer way in which to confine the operation of that paragraph within reasonable limits and gives a remedy to person who is detained otherwise than in accordance with those restrictions.

The judge held that no distinction can be drawn between a breach of the Hardial Singh principles and other kinds of public law wrongs (see paragraph 130 of the judgment) and that accordingly the statutory warrant rendered the appellant’s detention lawful throughout the whole of the third period. In reaching that conclusion he differed from the views expressed in the previous decisions of the Administrative Court to which I have referred. In my view, however, his conclusion fails to pay sufficient regard to the nature of the Hardial Singh principles as they apply to a case of this kind. In a case where the Secretary of State is given the power to detain a person pending deportation, it is not difficult to see how the principles operate as a restriction on the exercise of that power. It is less easy to adopt the same analysis, however, in a case where the statute provides that the person in question “shall be detained”, since detention pursuant to such a provision (as opposed to release) does not depend on a decision of the Secretary of State. It would be possible under those circumstances to confine the application of the Hardial Singh principles to the exercise by the Secretary of State of her power to release, as Mr. Tam submitted, but, as this appeal demonstrates, that leaves it open to the Secretary of State to contend that a failure on her part properly to apply those principles when considering whether the detainee should be released has no effect on the statutory authority to detain him and therefore gives him no cause of action for false imprisonment.

I have no doubt that the Hardial Singh principles apply to detention under paragraph 2(1) of Schedule 3. The purpose of detention under that paragraph is to facilitate deportation and in the absence of any indication to the contrary Parliament must be taken to have intended that persons should be detained only for that purpose. Once the purpose of detention has become incapable of being achieved, detention can no longer be justified and it cannot have been Parliament’s intention that it should then continue. In my view Parliament must also have expected the Secretary of State to act with reasonable diligence and expedition to remove the detainee and must, in the absence of any contrary indication, be taken to have intended that detention should continue only for a reasonable period. Insofar as paragraph 2(1) (and, on the making of a deportation order, paragraph 2(3)) contains a statutory obligation to detain, the Hardial Singh principles can be understood as implied limitations on the scope of an otherwise unqualified direction.

It follows that in my view the statutory authority for the detention of the appellant ran out on 1^st June 2010 and his detention became unlawful. In the light of Lord Brown’s analysis in Khadir I would accept that the power to detain did not wholly cease to exist and, if the Secretary of State is able at some time in the future to make arrangements for the appellant to travel to Jamaica, it may be open to her to detain him once more to ensure that he leaves the country. However, between 1^st June 2010 and 29^th September 2011 his detention was in my view unlawful and an action for false imprisonment will lie.

Two additional points must be mentioned. The first concerns the application of article 5 of the European Convention on Human Rights. Mr. Goodman submitted that the judge’s conclusions were inconsistent with article 5, (a) because they would permit the detention of those recommended for deportation indefinitely and without remedy, (b) because they would permit detention otherwise than with a view to deportation and (c) because they would permit detention otherwise than in accordance with a procedure prescribed by law.

In this case these criticisms were directed primarily to the third period when on the judge’s findings there was no prospect of deporting the appellant within a reasonable time, but they could in principle apply at any stage. For the reasons I have given I have reached the conclusion that the Hardial Singh principles apply to detention under paragraph 2(1). They provide the degree of protection against arbitrary detention in this context for which article 5 calls and it is therefore unnecessary to say any more about this aspect of the appellant’s case.

The second concerns the identification of the particular sub-paragraph of Schedule 3 under which the appellant was detained. The bail summary before the court records that on 4^th December 2007 the appellant completed his sentence and was detained under paragraph 2(2) of Schedule 3 to the Immigration Act 1971. By that time notice of a decision to make a deportation order against him had been given, so the case fell within both paragraph 2(1) and paragraph 2(2). Mr. Goodman submitted that the appellant was detained under paragraph 2(2), with the consequence that any public law wrong which bore on the appellant’s detention rendered it unlawful in accordance with the decision in Lumba. However, I am unable to accept that. Paragraph 2(1) contains a positive obligation to detain a person who has been recommended by a court for deportation and as such takes precedence over the discretionary power to detain contained in paragraph 2(2). There is nothing in the original minute of detention to suggest that the appellant was detained under paragraph 2(2). In my view the appellant was in fact detained under paragraph 2(1) with the consequences I have described.

For these reasons I would allow the appeal in respect of the period between 1^st June 2010 and 29^th September 2011, but would dismiss it in respect of the first and second periods and the earlier part of the third period.

I agree. Where section 2 (1) of Schedule 3 applies - because the person concerned has been recommended for deportation and is not detained pursuant to the sentence of the court -  or where, thereafter, section 2 (1) detention is continued under the words in  parenthesis in section 2(3)  because a deportation order is in force,  Parliament has provided that the foreign national concerned  shall be detained;  and no claim will lie for damages for false imprisonment even if a decision not to direct his release is unlawful. But Parliament cannot be regarded as having intended that such detention shall continue when there is no longer any prospect of deportation within any reasonable time.

By contrast, where section 2(1) has never been applicable, nor any detention by virtue of it continued under section 2(3), there is no statutory requirement of detention. Any decision to detain made under section 2(2) following a notice of a decision to make a deportation order, or under section 2(3) following a deportation order, will not justify the detention if it results from  a decision (or a failure to take one) which is unlawful in public law terms in a way that bears on the decision to detain or the detention. Hence in the present case, on the findings of the judge, the appellant is entitled to damages in respect of the period beginning on 1 June 2010, but not otherwise.

Although I have reached the same conclusions as Lord Justice Moore-Bick, my reasons are not quite the same as his. There is no claim for substantive relief in relation to the first two periods, but I believe that there is an alternative way of analysing the claim for the third period.

It seems to me that the primary answer lies in the wording of paragraph 2(1) itself. The mandate to detain is made expressly subject to two conditions. One is that the mandate only operates “pending the making of a deportation order”; this remains the case where detention is continued under the separate provisions of paragraph 2(3), and is the foundation of the Hardial Singh doctrine.

The other condition, expressed in “unless” form, is that the mandate for detention ceases if the Home Secretary directs release. Such a condition necessarily places upon the Home Secretary an obligation (not merely a discretion) to consider provisional release in all paragraph 2(1) – and by extension paragraph 2(3) – cases. Such an obligation does not of course require daily or weekly review, but it does logically require review at reasonable intervals, as Elizabeth Laing QC, as she then was, held in R (BA) v Home Secretary. If this is right, a failure to carry out such reviews, and a fortiori a policy of not doing so, would be contrary to law.

I do not think that paragraph 88 of WL (Congo)- which, as Lord Justice Moore-Bick points out, is in any case obiter - either controverts or excludes this analysis: it was addressing a different point. Nor, in my respectful view, does the decision in R (JS (Sudan))  deal with this point.

The test of a material public law error seems to me too imprecise to do service in place of statutory construction. Public law errors are of many different kinds. They include failure to fulfil a legitimate expectation created by a policy or a practice, and the pursuit of an unlawful policy; but, as the present case illustrates, the consequences of such an error may not be easy to pin down. It is desirable, if posssible, to find a more hard-edged test for the present issues.

It is unsurprising that Parliament, in enacting the material provisions, should have been circumspect about authorising detention by the executive in peacetime; but even if it were not so, it would be the obligation of the courts to read any such legislation consistently with the high value the common law has always placed upon personal liberty. The background against which Parliament legislates is the common law, which for centuries has been strongly resistant to detention without charge or trial. (It needs to be remembered that those detained following conviction have served their sentence by the time paragraph 2 comes into play.)  Even when used in wartime, executive detention was described by the prime minister, Winston Churchill, as “in the highest degree odious” (Footnote: ¹)^[1]. Lord Atkin’s endeavour in Liversidge v Anderson [1942] AC 406 to subject the Home Secretary’s emergency powers of detention to judicial scrutiny is now recognised as a correct statement of the law:  see R v IRC, ex parte Rossminster Ltd [1980] AC 952, 1011. Hence Lord Browne-Wilkinson’s powerful statement in Tan Te Lam which Lord Justice Moore-Bick has cited.

This is among the reasons why a principled reading of paragraph 2(1) shows it not to contain an unconditional warrant for detention. Among other things it explains why the Home Office policy of detaining all ex-prisoners recommended for deportation regardless of their individual circumstances was unlawful. But it does not follow that administrative detention becomes false imprisonment at the first such breach. It is only where it can be established that due consideration would more probably than not have led to release that this will follow. In this respect, consistently with the conditional presumption of detention contained in paragraph 2(1), the tort is differently constituted from the classic form of false imprisonment, where the bare fact of detention places a burden of justification on the state.

The concession made on the appellant’s behalf in this respect in relation to the first period precludes any finding in his favour.

In the second period, the mischief was a continuation of what had happened in the first period, namely failure to review the need for continuing detention. The difference was that, in place of a policy of non-review, there was now a failure to implement the  review policy. But the legal vice, if there was one, was not the failure to follow policy, which is not law; it was the failure to review, which is required by law whether or not reflected in policy.

Because of the concession that the appellant would have been detained  in any event, however, no judgment is called for on the legal consequences of the failure to review.

But the construction of the Schedule 3 provisions which I would favour, and which I have outlined above, supports Lord Justice Moore-Bick’s conclusion that the third period, when the appellant was detained in the absence of any prospect of deportation, was a period of false imprisonment.

While I of course accept the view of the House of Lords in Khadir that Hardial Singh concerned the exercise rather than the existence of the power of detention, the distinction is one which in the present context makes little legal difference. As Lord Justice Moore-Bick says, Hardial Singh can be properly seen as giving effect to Parliament’s intentions rather than as qualifying them, particularly if, as I have suggested above, the express purpose of paragraph 2 of Schedule 3 is to facilitate prospective deportation, so that, once the prospect has ceased to be real, the paragraph has no purchase.

I would add that release under paragraph 2 is not, in my respectful view, an exercise of discretion. It is the exercise of a power which, like all delegated powers, must be exercised for the purpose for which it is conferred; and never more so than when it relates to administrative detention. If the use of detention for warehousing persons liable to deportation or removal has become a serious problem, it is in part because of repeated failures by the Home Office to limit the exercise of powers given to it by Parliament to the purpose for which they are intended.

The debate as to which sub-paragraph of Sch. 3, paragraph 2, was at different times the basis of the appellant’s detention does not greatly matter. The detention of the appellant in the third period was not detention either “pending the making of a deportation order” (since one had now been made) or “pending his removal or departure from the United Kingdom”, because there was no longer any realistic possibility of either of these things happening. Hardial Singh and the decisions endorsing and amplifying it can be said simply to give life to this straightforward construction of Parliament’s words.

I therefore agree that, in respect of the period from 1 June 2010 to 29 September 2011, the appellant’s action for false imprisonment is maintainable.