BA and Others v The Home Office
| Jurisdiction | England & Wales |
| Judge | HH Judge Anthony Thornton |
| Judgment Date | 08 June 2011 |
| Neutral Citation | [2011] EWHC 1446 (QB) |
| Court | Queen's Bench Division |
| Date | 08 June 2011 |
| Docket Number | Case No: HQ09X02216 |
[2011] EWHC 1446 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
HH Judge Anthony Thornton
Case No: HQ09X02216
Mr Hugh Southey QC (instructed by Pierce Glynn) for the Claimant
Mr Robert Kellar (instructed by the Treasury Solicitor) for the Defendant
HH Judge Anthony Thornton QC:
Introduction
This is an appeal with the permission of Deputy Master Rose from his order made on 19 August 2010 when he struck out the claimants' claims against the defendant as an abuse of process pursuant to CPR 3.4(2)(b). The claimants claim damages for false or wrongful imprisonment or detention and, cumulatively or additionally, damages for breaches of their Convention Rights provided for under article 5 for their detention in Yarlswood Immigration Centre between 27 May 2008 and 22 July 2008. The Deputy Master's decision, which is one based on the exercise of procedural discretion, should only be set aside if it is shown that he exercised that discretion perversely, or that he exercised it on the basis of a significant error of law or of a demonstrably significant error of fact or that he took into account significant factors which he should not have taken into account or he failed to take into account significant factors which he should have taken into account. The claimants start this appeal, however, with the advantage of a finding in their favour by the Deputy Master that this appeal has a real prospect of success since he granted the claimants permission to appeal from his decision.
Procedural matters
I should first deal with three procedural matters. The first matter relates to the claimants' application issued after they had issued their notice of appeal dated 31 August 2010. This second application sought an order from a judge of the Queen's Bench Division that the appeal should be transferred to the Court of Appeal. Cooke J refused the application on the grounds that the appeal did not raise a sufficiently important point of principle or practice to satisfy the threshold test set out in CPR 52.14 for it to be transferred to the Court of Appeal without first being decided by a single judge of the Queen's Bench Division. Moreover, the judge held that there was no other compelling reason for such a transfer, particularly as the questions of principle raised by the appeal were bound up with questions of fact which needed to be spelt out by the first appeal court before any question of a hearing of an appeal by the Court of Appeal should be considered.
The second matter relates to the defendant's application dated 24 January 2011 to serve a respondent's notice out of time. This notice was served shortly before the listed date for the appeal. It was contended that it would not cause the claimants any prejudice if the defendant was permitted to rely on the additional grounds it set out in order to uphold the order made at first instance, particularly as it was also contended that these additional grounds were a development of grounds that had been raised, although not in any detail, at that first hearing but were not referred to in the Deputy Master's judgment. The application was not opposed and I granted permission.
The third matter relates to the claimants' application dated 31 January 2011 to rely on fresh evidence that was not before the Deputy Master in order to be able fully to address the additional grounds that the defendant sought to rely on. The defendant did not object to this additional evidence being deployed at the hearing of the appeal and I granted permission.
Summary of relevant law of wrongful detention and of BA's claims in the judicial review proceedings.
False imprisonment, or as it is called in the immigration field, unlawful detention, is a tort which occurs when a claimant is subject to his or her complete deprivation of liberty without lawful excuse. In the immigration field, such deprivation is authorised for, amongst others, persons subject to removal directions pending their removal 1. This power is limited by the principles usually called the Hardial Singh2 principles. These were set out by Dyson LJ (now Lord Dyson) in his judgment in R (I) v Secretary of State for the Home Department3 as follows:
(i) The Secretary of State must intend to deport that individual 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 that 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 continue to exercise the power of detention; and
(iv) The Secretary of State should act with reasonable diligence and expedition to effect removal.
The power to detain is also limited by the policy guidance publicised by the Secretary of State contained in what was, at the time of the claimants' detention, The Operational Enforcement Manual. This covers, in respects relevant to these claimants, guidance on procedures to be followed before any detention decision is taken and enforced, particularly with regard to families and young children, and the approach to be adopted with regard to the detention decision. Since detention should be linked to what is reasonable and to whether deportation or removal will be capable of being effected within a reasonable time, regard had also to be paid to the published guidance as to whether and what treatment to protect against malaria and TB should be provided to the deportees in applicable cases and to what liaison there should be with the receiving state's health facilities with regard to on-going treatment for those suffering from HIV. In assessing whether the detention was lawful in the light of these principles, the court has to apply an objective test as to whether the defendant has exercised all reasonable expedition to effect removal. The burden of proof to establish this rests with the defendant. If it appears, following an investigation of these matters, the detainee is entitled to damages at common law for the tort of unlawful detention. Where the circumstances of the detention display particular hardship amounting to a significant failure to comply with the law or to exercise reasonable skill and care, aggravated damages may be claimed and where the detention amounts to oppressive or arbitrary behaviour or an abuse of power, exemplary damages may be claimed. However, if the claimants would still have been detained had correct and approved procedures been followed, even though they had not been followed, the defendant will only be liable for reduced or nominal damages. If the detention was unlawful, the claimants may also claim damages under article 5(4) of the ECHR. However, the award under this head must be proportionate and must take account of damages awarded under the tortious principles related to unlawful detention.
Since detention is related to the prospect of immediate removal, those who are detained are subject to removal directions and, in many cases, to proceedings or judicial determination of grounds on which the removal directions may be set aside since forced or compulsory removal is only permitted where it is subject to such directions. The only way that such directions may be set aside is by recourse to judicial review and, in seeking an appropriate order quashing removal directions, these must be shown to be unlawful. Usually, the directions can only be shown to be unlawful if they have failed to give effect to the claimants' articles 2, 3 or 8
rights, have failed to take account of submissions lodged on their behalf or fail in some other way to comply with the law. If a claimant has previously had any type of Asylum and Immigration Tribunal 4 hearing at which his claims have been dismissed, he may only succeed in mounting a second claim in reliance on those facts if it can be shown that the claim is a fresh claim as defined by the Immigration Rules. Such a claim is one which substantially relies on fresh facts and which has reasonable prospects of success before an Immigration Judge. If the defendant determines that the claim is not a fresh claim, that negative decision may be the subject of judicial review in an attempt to have the defendant's dismissal of the fresh claim set aside and reconsidered so as to obtain a second First Tier Tribunal (Immigration and Asylum Chamber) hearing at which the deportation decision can be challenged.It follows that claims for damages for unlawful detention are separate from claims seeking to challenge removal directions. Unlawful detention can occur whether or not the removal directions are open to challenge and it is neither necessary nor sufficient, in order for a claimant to claim or obtain damages for unlawful detention, to secure an order for his release from detention or for the setting aside of removal directions.
Summary of relevant Administrative Court and Queen's Bench Division procedures.
Judicial review, a public law remedy, is only available in the Administrative Court 5. It is the only available remedy to a claimant such as BA who seeks to have quashed or set aside what is alleged to be an unlawful decision of a public body which adversely affects that claimant. The relevant remedy in this case, a quashing order, may include an ancillary claim for damages but a claimant is not permitted to bring a claim for damages by way of judicial review unless it is linked to a mandatory public law remedy or a claim for a declaration that a decision or other action of a public body is unlawful. If the relevant act or decision of the public body is withdrawn or is no longer effective prior to any decision of a court, the public law...
To continue reading
Request your trial
-
T.l. No 2 (ap) For Judicial Review Of An Age Assessment By Angus Council That The Petitioner Is Over Eighteen Years Of Age
...has developed in England & Wales. The procedure in age assessment cases is well described by HH Judge Thornton in BA v Home Office [2011] EWHC 1446 (QB) (8 June 2011) at paragraph 14. Beyond reference to the decision of the Supreme Court in R (A) v Croydon LBC etc [2009] 1 WLR 2557, no atte......
-
Appeal From Glasgow Sheriff Court Stuart Docherty+paul Logan+james Philbin V. The Scottish Ministers
...a public law issue could arise as part of a private action for damages which involved no quashing order (BA and Others v Home Office [2011] EWHC 1446 (QB), per HH Judge Anthony Thornton, QC at paragraphs 10-12 and 55-58). [17] In all of these exceptional circumstances, Mr Collins submitted ......
-
BA (Claimants and Respondents in the appeal) BB and Others The Secretary of State for the Home Department (Defendant and Appellant in the appeal) Bail for Immigration Detainees (Intervener)
...EWCA Civ 944 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE QUEEN'S BENCH DIVISION HH Judge Anthony Thornton QC [2011] EWHC 1446 (QB) Royal Courts of Justice Strand, London, WC2A 2LL President of the Queen's Bench Division Lady Justice Black and Lord Justice Davis Case No: A2/20......