FS v Secretary of State for the Home Department

The claimant is a national of Afghanistan who entered the United Kingdom on 17 September 1999 and claimed asylum. His claim arises from the delay in determining his claim for asylum, and from his detention by immigration authorities for a period of 24 days from 14 November 2005 to 8 December 2005.

The particulars of claim pleaded a number of causes of action; but at the commencement of the hearing Mr De Mello, who appeared for the claimant, conceded that in the light of recent authority the claims for damages for negligence and for breach of statutory duty could no longer be pursued. There remained two live causes of action, namely a claim for damages for false imprisonment, and secondly for misfeasance in public office.

The Factual Background

The effect of the change in policy was that the claimant was not granted leave to remain as would probably have been the case had his application been determined before April 2002. He was eventually interviewed by the defendant’s immigration officers on 12 March 2004; and on 16 March 2004 his asylum and human rights claims were refused. His appeal against the decision was dismissed by an Adjudicator on 11 June 2004. Permission to appeal against that decision was refused on 31 October 2004.

On 11 October 2004 the claimant applied for discretionary leave to remain. The application was based largely on the fact that he was working in the United Kingdom, and that there would be a detrimental effect on the employing company if he were required to leave. But on 3 November 2005 his application was refused; and his case was certified pursuant to section 96(1) of the Nationality, Immigration and Asylum Act 2002 (NIAA), which had the effect that he had no further right of appeal and could be removed from the United Kingdom.

On 14 November 2005 the claimant was detained when he reported to the UK immigration service in accordance with his reporting conditions. He was then served with the decision of 3 November refusing his application for leave to remain; and on 17 November directions were set for his removal to Afghanistan on 3 December 2005.

On 24 November 2005 he made an application for bail. The application was refused by an immigration judge who said:

“I am satisfied there are substantial grounds for believing that if granted bail the applicant will abscond for the reasons set out overleaf.

…

Reasons for Decision:

The applicant is due to be removed from the UK on 3.12.05, therefore removal is imminent. I am satisfied that he would have little incentive to answer bail or abide by any conditions imposed. There is no legal impediment as at present to prevent his removal. I am told that solicitors intend to pursue an application for judicial review but at the date of this bail application this has not been done. Removal therefore remains viable and realistic with a date set. Bail is refused.”

On the same day, 25 November, the claimant’s solicitors wrote to the defendant referring for the first time to the claimant’s longstanding relationship with a British citizen, and enclosing a statement from her. The letter was treated as a further application for leave to remain. But it was refused on 2 December, and on 6 December the removal directions were re-set for 13 December.

On 7 December the claimant issued proceedings for judicial review of the defendant’s decisions of 3 November and 2 December 2005, and in consequence he was released from detention on 8 December 2005.

Judgment on the judicial review claim was given by Collins J on 26 January 2007, R(S) v SSHD [2007] EWHC 51 (Admin). He found that the delay in the determination of the claimant’s asylum claim was not, in itself, unlawful, but that the decision to remove the claimant had been flawed in that it had been predicated on the erroneous assumption that the claimant would be able to apply for entry clearance from Afghanistan, and secondly held that the certification of the claim under section 96(1) of the NIAA was unlawful.

The defendant appealed, and the claimant sought, by way of a respondent’s notice, to uphold the order made by Collins J on the additional basis that the decision to delay the determination of the asylum claim had been unlawful. In a judgment handed down on 19 June 2007 SSHD v R(S) [2007] EWCA Civ 546, the Court of Appeal dismissed the appeal on the grounds set out in the respondent’s notice, concluding that the policy implemented in January 2001, by which new claims to asylum were given priority over old, was unlawful. I shall return both to the policy and to the judgment of the Court of Appeal.

On 17 September 2007 the claimant was granted indefinite leave to remain.

False Imprisonment

The s28 issue

In my oral ruling on the preliminary issue I held that there is a critical distinction between the exercise of the power of detention under paragraph 16(2) of Schedule 2 of the Immigration Act 1971, and the power to arrest under paragraph 17. The relevant paragraphs of schedule 2 are in the following terms:

“Detention of persons liable to examination or removal

16(2) If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8–10A or 12–14, 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

17(1) A person liable to be detained under paragraph 16 above may be arrested without warrant by a constable or by an immigration officer.

18(4) A person shall be deemed to be in legal custody at any time when he is detained under paragraph 16 …”

As I observed in my ruling, the exercise of the power to arrest under paragraph 17 is different from the exercise of the power to detain under paragraph 16. Paragraph 17 is plainly directed at those at large in the community. An individual may be arrested under paragraph 17 before being detained under paragraph 16, but a person may be detained under paragraph 16 without previously having been arrested under paragraph 17.

Secondly, I held that the power to arrest under paragraph 17 is subject to the requirements of section 28 of PACE, but that section 28 has no application to detention under paragraph 16.

That conclusion gave rise to the factual issue of whether the claimant was arrested under paragraph 17 or simply detained under paragraph 16.

The Factual Issue

In cross-examination the claimant gave a more detailed account of the events in question. He said that on speaking to an immigration officer when reporting in accordance with his reporting conditions, he was asked to stand to one side and told that the immigration officer needed a full photograph of him. He was then taken to another room, where he asked the immigration officer

“Why am I here – it is a kind of imprisonment.”

He says that the immigration officer replied “we are going to detain you.” He then asked why they were going to keep him there, and was told that his application had been refused and “you are under arrest”. He again asked the reason, saying that he hadn’t done anything wrong. At a later point in his cross-examination he said that he had said to the immigration officer “If you want to detain me, you must give me the reason. Why do you want to detain me?”

Not surprisingly given the period that has elapsed since the events in question, the defendant was not in a position to adduce evidence from the immigration officer in question. But his file maintained by the immigration service contains a contemporary note. There are a number of relevant entries.

“3 November 2005

Refusal letter dated 03/11/05 relating to further reps of 11/10/04 attached to check sheet.

Letter to be served by fax and post on sols at time of proposed detention on 07/11/05 and copy to be given to subject.

7/11/05

Subject not detained to-day as planned due to holding room being at capacity (10) detained.

Detention deferred until Monday 14/11/2005 …

14/11/05

Subject detained off reporting to-day.

…

10:05

Subject detained off reporting. Subject accompanied from reporting counter to holding room, also present in room was IO PETTLE and PC HARRIS. Subject was informed of the reasons for his detention and served with RFRL letter IS91R & Form B1. He was then escorted to holding room where he was photographed and transferred into the custody of G4S with custody officers being issued with IS91 & IS91RA part A.

Mr De Mello relied on the claimant’s evidence that he was told that he was under arrest, and that he was handcuffed before being put into a van for transportation to the detention centre at Oxford. He also relied upon the fact that a police officer, Pc Harris, was present in the holding room at 10.05. But I am not persuaded that such evidence demonstrates that the Immigration Officer was exercising a power of arrest under paragraph 17. I consider that the contemporaneous notes clearly indicate that he was being detained by the immigration officer in the exercise of his power under paragraph 16(2). I am satisfied that that was the reality of the situation, and I am reinforced in that conclusion by the evidence given by the claimant. Whilst his use of the word ‘arrest’ to describe what had happened to him is understandable in a layman, it is highly significant that when describing what had happened in cross-examination, he repeatedly referred to being detained. He said that in response to his first enquiry “why am I here”, he was told “we are going to detain you”, adding at a later stage that he asked “if you want to detain me you must give me the reasons. Why do you want to detain me?”

I therefore find that the claimant was detained under paragraph 16 without having been arrested. It follows that the section 28 of PACE did not apply, and that accordingly the argument that the detention was unlawful by virtue of a failure to comply with its requirements must fail.

But in any event if I am wrong, and the claimant was in fact arrested by the immigration officer pursuant to the power of arrest under paragraph 17, I am satisfied on the claimant’s own evidence that he was told the reason for such arrest. As he said in paragraph 20 of his first witness statement, he was told that he was liable to be detained and removed as both his applications for asylum and for discretionary leave to remain had been refused, evidence that he confirmed in cross-examination. His claim therefore fails on the facts even if he was arrested.

The Wednesbury reasonableness issue

Mr De Mello founds his argument on a passage from the judgment of Lord Dyson in the Supreme Court in WL (Congo) v SSHD [2011] UKSC12 at paragraph 22 in which he addressed the power to detain.

“22.

It is convenient to introduce the Hardial Singh principles at this stage, since they infuse much of the debate on the issues that arise on this appeal. It is common ground that my statement in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 88, [2003] INLR 196 para. 46 correctly encapsulates the principles as follows:

(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.”

As I have already observed the letter from the claimant’s solicitors dated 25 November 2005 referred for the first time to the claimant’s relationship with his girlfriend. The accompanying statement from her said that the relationship had begun in 2002, but that she had not decided to divorce her husband to whom she was unhappily married until October 2005, and that the claimant had not wanted to rely upon the relationship as he did not want people to think that he was going out with her in order to get a visa.

Mr De Mello submits that once that letter was received, it must have been apparent to the decision maker that removal was unlikely to happen imminently, and that accordingly, per the third of Lord Dyson’s principles, detention could no longer be justified, and the claimant ought to have been released.

The letter of 25 November was rightly treated as an application for discretionary leave to remain. But until a decision was made on the application, the claimant’s status remained unchanged, and an immigration judge had rejected his application for bail on the same day. The application was addressed expeditiously, the claimant being informed of its rejection by letter dated 2 December. As a result of the rejection, the claimant remained liable to be removed, and on 6 December removal directions were re-set for 13 December. Thus there is no basis for the argument that either after receipt of the letter of 25 November or after the decision of 2 December, removal was unlikely to happen imminently. On the contrary there was no reason why he should not have been removed up until the issue of his claim for judicial review on 7 December, following service of which he was duly released on 8 December.

In my judgment the argument that his continued detention either after 25 November or after 2 December was Wednesbury unreasonable is unsustainable. It follows that the second limb of the claim for false imprisonment fails.

Misfeasance in Public Office

It is not suggested that this was a case of targeted malice. Accordingly to succeed in his claim, the onus was on the claimant to establish that the decision makers were acting in bad faith knowing that there was no power to introduce or apply the policy, and secondly knowing that it would probably injure the claimant.

The policy in question was introduced to address the problem created by the volume of claims for asylum. In the face of a substantial backlog of claims, a decision was made to defer consideration of outstanding claims made prior to 1 January 2001 for an indefinite period in order to meet PSA targets agreed with the Treasury for the processing of applications made after that date. As a consequence the claimant’s application, made on entry on 17 September 1999, was put on hold.

Had the claimant’s application not been deferred, it is likely that it would have been considered at a time when Afghanistan was still under the control of the Taliban, and that he would therefore either have been granted refugee status and ILR, or if his application for asylum had been rejected, he would have been granted ELR for a period of four years in accordance with the Secretary of State’s policy which recognised the difficulty of returning failed asylum seekers to Afghanistan, and in due course ILR on the expiry of the four years period, assuming good behaviour. But the Taliban were removed from power in 2001, and in consequence by the time that the claimant’s application came to be considered in March 2004, he was no longer at risk of persecution in Afghanistan and did not therefore qualify for refugee status. Since there were no longer difficulties in returning failed asylum seekers to Afghanistan, the policy of granting ELR no longer applied.

The claim is based upon the judgments of the Court of Appeal in the judicial review proceedings. The decisions under challenge were the Secretary of State’s refusal of the claimant’s application for discretionary leave to remain and the certification under section 96(1) of the NIAA. But the challenge necessarily involved consideration of the legality of the policy of deferral of outstanding asylum claims made prior to 1 January 2001. As Carnwarth LJ put it at paragraph 1 of the judgments of the Court of Appeal:

“This appeal raises a difficult issue relating to the effect of adverse policy changes during the consideration of an asylum application. In particular, we are concerned with the scope of the judgment of this court in R (Rashid) v Secretary of State [2005] EWCA Civ 744.”

The claimant’s submission that the deferral of his asylum claim amounted to misfeasance in public office is based on the conclusion by the Court of Appeal that the policy in question amounted to an abuse of power. It was argued on his behalf before the Court of Appeal that this was not a case of mere delay:

“… but a deliberate decision in 2001 to postpone his and other backlog cases, for purely political reasons, and without any regard to fairness and consistency, or the impact of that decision on those effected. As in R (Rashid) v Secretary of State … the claimant had been the victim of “conspicuous unfairness amounting to abuse of power”, for which the appropriate remedy was to declare that he was entitled to ILR.” (para. 23).

His claim for judicial review therefore called for a close analysis of the decision in Rashid. Carnwarth LJ did not find the reasoning of the court in Rashid “altogether convincing”. But neither he nor Moore-Bick LJ, with whom Lightman J agreed, considered that abuse of power should be regarded as a higher form of unlawfulness. As Carwarth LJ put it at paragraph 40:

“Thus, as understood hitherto, abuse of power is not a special and more extreme category of illegality, but is rather a “general concept” underlying other “particular forms”. In the words of Laws LJ (R v Secretary of State for Education & Employment, ex p. Begbie [2000] 1WLR 1115, 1129), it has become “the root concept which governs and conditions our general principles of public law”.

“Similarly Professor Craig (Op sit p 655) described abuse of power as “the conceptual rationale” for the protection of substantive legitimate expectation, but added that it does not in itself furnish a “standard of review”.

Similarly, per Moore-Bick LJ:

“70.The first question for us to consider in the present case is whether the Secretary of State’s decision to defer consideration of the claimant’s application was unlawful because it involved an abuse of power. Abuse of power has increasingly been recognised as a unifying principle underlying other well-recognised grounds for regarding administrative acts as unlawful: see per Laws LJ in R v Secretary of State for Education & Employment ex p. Begbie … The expression “abuse of power” may suggest deliberate misconduct on the part of the Secretary of State or one of his officials with the intention of achieving some ulterior objective, but I think it is clear that it is not in fact limited to acts of that kind. The expression that has most commonly been used to identify abuse of power is “conspicuous unfairness”, a phrase that is more naturally directed to the consequences of the acts or omission in question than the motives behind them. I respectfully agree with Carnwarth LJ that abuse of process should not be regarded as a more serious form of unlawfulness than Wednesbury unreasonableness or denial of legitimate expectation, nor as one that gives rise to different or more far-reaching consequences:

71.

In the end the court’s duty in upholding the rule of law in this context is to identify and set aside administrative acts and decisions which, for whatever reasons, are unlawful. Whether any particular act or decision meets the test of “conspicuous unfairness”, and is therefore to be regarded as unlawful on the grounds of abuse of process, will depend on the particular facts of the case. I doubt whether any cases which fall within any well-established grounds of intervention would not also satisfy the grounds of the test of conspicuous unfairness, but there will from time to time be cases which, although not obviously falling within one of those established grounds, will be seen to have that quality. In my view the decision in the present case to defer indefinitely consideration of the claimant’s application for asylum falls into that category. It was conspicuously unfair to treat him and other outstanding applicants for asylum who had made their applications before 1^st January 2001 differently from those whose applications made later for no better reason than to meet administrative targets applicable only to later claims.”

Mr De Mello submits that the requirement that the decision maker in question knew that he had no power to do the act complained of is met by the conclusion of the Court of Appeal that the policy in question amounted to an abuse of process on the basis that it was conspicuously unfair. I do not agree. As Moore-Bick LJ observed at paragraph 70 the expression “abuse of power” may suggest deliberate misconduct on the part of the Secretary of State or one of his officials with the intention of achieving some ulterior motive, but not necessarily so, and as he continued “conspicuous unfairness” is more naturally directed to the consequences of the act or omission in question than to the motive behind them. I do not therefore regard the conclusions of the Court of Appeal as determinative of the issue before me.

The question is therefore whether there is any evidence from which it can properly be inferred that those responsible for the policy knew that they had no power to introduce it, and were acting in bad faith in as much as they did not have an honest belief that they were acting lawfully.

In my judgment there is no evidence from which such an inference can be drawn. As was submitted on behalf of the defendant, all the evidence goes the other way. The delay in consideration of the claimant’s asylum claim was due to the correct application of the policy in place at the time, and it was not until many years later that the policy was judged by the Court of Appeal to have been unlawful. There is no basis upon which to infer that those responsible for the policy, or its implementation, knew that it was unlawful when introduced or when applied to the claimant. The point is reinforced by the fact that the claim for judicial review was strenuously defended both at first instance and in the Court of Appeal. If the claimant’s submission is well-founded, it would follow that the defendant resisted the claim for judicial review knowing full well that the policy in question was unlawful. That is not a conclusion at which I could arrive on the evidence.

It follows that in my judgment the evidence does not support the contention that there was bad faith on the part of the defendant such as to found a claim for misfeasance in public office.

In those circumstances it is not necessary to address the question of whether the defendant knew that the policy would probably injure the plaintiff. Suffice it to say that had I found that it could properly be inferred that the defendant knew that the policy was unlawful, I would have found that the defendant would also have known that it would probably injure the claimant in the sense that he would have continued to be in a state of uncertainty as to his immigration status. As Collins J put it at first instance in the judicial review proceedings [2007] EWHC 51 (Admin) at para 36:

“He has been condemned to a cruel limbo of worry and uncertainty over his future.”

But it follows that the claimant fails on both of the outstanding causes of action, and the claim must be dismissed.