ID and Others v Home Office and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Brooke,Lord Justice Thomas,Lord Justice Jacob,LORD JUSTICE BROOKE
Judgment Date04 Mar 2005
Neutral Citation[2005] EWCA Civ 296,[2005] EWCA Civ 38
Docket NumberCase No: B2/2004/0847,B2/2004/0847

[2005] EWCA Civ 296

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CENTRAL LONDON COUNTY COURT

(HHJ CRAWFORD LINDSAY QC)

Royal Courts of Justice

Strand

London, WC2

Before

Lord Justice Brooke

(Vice President of the Court of Appeal, Civil Division)

Lord Justice Thomas

Lord Justice Jacob

B2/2004/0847

ID and Others
Claimants/Appellants
and
Home Office and Another
Defendants/Respondents

MR RAZA HUSAIN (instructed by Messrs Bhatt Murphy, London) appeared on behalf of the Claimants

MR STUART CATCHPOLE QC AND MISS JENNI RICHARDS (instructed by Treasury Solicitors) appeared on behalf of the Defendants

LORD JUSTICE BROOKE
1

We consider this is not a case in which we can sensibly make a deduction from the costs. The appellants in essence won on the main issue with which this appeal is concerned and in so far as they have lost we understand that our judgment was of great assistance to the Home Office and the Home Office should be content with that. Costs here and below.

[2005] EWCA Civ 38

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CENTRAL LONDON COUNTY COURT

Judge Crawford Lindsay QC

District Judge Lightman

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

Lord Justice Brooke

Vice-President of the Court of Appeal (Civil Division)

Lord Justice Thomas and

Lord Justice Jacob

Case No: B2/2004/0847

Between
ID & Others
Claimants/Appellants
and
The Home Office
Defendants/Respondents

Rabinder Singh QC and Raza Husain (instructed by Bhatt Murphy) for the Appellants

Stuart Catchpole QC and Jenni Richards (instructed by the Treasury Solicitor) for the Respondents

Richard Gordon QC, Nadine Finch and Richard Hermer (instructed by Birnberg Peirce & Partners) for Bail for Immigration Detainees and the Immigration Law Practitioners' Assocation as Interveners

INDEX

Heading

Para No.

1.

The Claim made in the County Court

2

2.

The scope of the Immigration Act 1971

15

3.

The power of the immigration officer to detain

24

4.

The general scope of Article 5

28

5.

The claimants' formulation of the challenges made

34

6.

The evidence

50

7.

The causation of the alleged loss: the detentions by the immigration officers

54

8.

The immigration officers' claim to immunity for their actions

60

9.

The scope of the remedy

77

10.

The effect of the Human Rights Act 1998 on the remedy

90

11.

Conclusion on the main issues as to immunity and the remedy

113

12.

The contentions in respect of Articles 2, 3 and 8

124

13.

Result of the appeal

128

Lord Justice Brooke
1

This is an appeal by the claimants, who are a Czech family of Roma ethnic origin, against an order made by Judge Crawford Lindsay QC in the Central London County Court on 7 th April 2004. The judge had allowed an appeal by the Home Office against an order made by District Judge Lightman in the same court on 7 th August 2003 who had struck out their application to strike out (or grant them summary judgment in respect of) significant parts of the particulars of claim.

1

The Claim made in the County Court

2

By the Amended Particulars of Claim in this action the claimants claimed:

(i) a declaration that the Home Office had acted incompatibly with their Convention rights, and in particular those arising out of Articles 2, 3, 5, 8 and 14 set out in Schedule 1 to the Human Rights Act 1998 ("the 1998 Act");

(ii) a declaration that the Home Office had wrongfully discriminated against them contrary to section 29 of the Sex Discrimination Act 1975 and/or sections 19B and/or 20 of the Race Relations Act 1976;

(iii) damages for false imprisonment;

(iv) damages for negligence;

(v) aggravated and/or exemplary damages.

3

On 28 th February 2003 the Home Office applied for an order striking out and/or awarding summary judgment in their favour in relation to all the claims set out under (i), (ii) and (iii) above, other than the claims which related to their Convention rights under Article 14 of the European Convention on Human Rights ("ECHR") and the claim which related to section 19B of the Race Relations Act 1976. District Judge Lightman struck out this application. Judge Crawford Lindsay QC, in allowing the Home Office's appeal, granted them the relief they sought. On 27 th May 2004 Laws LJ granted the claimants permission to appeal to this court as a second appeal, observing:

"I consider that the appellants may face a very uphill struggle; but the relation between (1) administrative detention under the immigration legislation, (2) the tort of false imprisonment, and (3) Article 5 of the ECHR is fit for examination in the Court of Appeal and this is an appropriate case for that to be done."

4

It will be noted that as things now stand the claimants' claims under ECHR Article 14 and section 19B of the Race Relations Act, and for damages for negligence, will be proceeding to trial in the county court in any event. On this second appeal they have made no attempt to resuscitate their claims under section 29 of the Sex Discrimination Act and section 20 of the Race Relations Act. What is in issue before us is the viability of their claims for damages for false imprisonment, and of their claims under ECHR Articles 2, 3, 5 and 8. Because of the importance of the issues raised by the appeal, we granted permission to Bail for Immigration Detainees ("BID") and the Immigration Law Practitioners' Assocation ("ILPA") to intervene. We also granted them permission to file short witness statements articulating the nature of their concerns in relation to the issues raised on the appeal. We were told that their intervention was supported by the Refugee Children's Consortium, of which they are both members. The Home Office filed a witness statement in reply.

5

The first claimant ID is the wife of the second claimant AD, and their two daughters TD and ID are now 14 and 10 respectively. They arrived at Waterloo station on the morning of 6 th February 2002 by a Eurostar train. On arrival, the first claimant claimed asylum, and her husband's and daughters' claims were dependent on her claim. Her husband was immediately detained, whereas she and her daughters were granted temporary admission on the basis that they were to stay overnight with her husband's maternal uncle. He had already been granted refugee status. Her husband was kept at Waterloo station until midnight. He was then taken to a police station for the night and returned to Waterloo at 8.30 a.m. the following day. On the same day the first claimant came back to Waterloo with their daughters, and the whole family was then transported to Oakington Detention Centre ("Oakington").

6

By a letter dated 12 th February 2002 the Home Office refused the first claimant's application for asylum, and on 13 th February she was refused leave to enter.

7

On 14 th February 2002 the family were moved to Yarl's Wood Detention Centre, arriving there at about 1 pm. The facts set out in the Amended Particulars of Claim must be taken to be true for the purposes of this appeal. The family was kept in a waiting area until about 6 pm, and were taken to their rooms in C Block at about 8 pm. They had not eaten since midday, but they were told that they would soon receive food, and they were given a key with which they could lock up their possessions.

8

Nobody in fact came back to see them, and during that evening there was a serious disturbance at Yarl's Wood, followed by a fire. Staff evacuated the centre leaving the claimants locked up in the centre, and they only managed to escape with the help of other detainees. The fire destroyed much of Yarl's Wood. All the claimants' possessions were lost or destroyed, and they were terrified by what had happened. At about 7.45 am the following day they were taken to Harmondsworth Detention Centre in a state of shock, and were detained there until 19 th February. On 18 th February the first claimant appealed to an adjudicator, and her notice of appeal was sent to the Home Office the following day. The family were then granted temporary admission on the basis that they stayed with the second claimant's uncle.

9

The original Particulars of Claim were accompanied by medical reports on each of the claimants. The general gist of these reports was that they were all suffering from post-traumatic stress disorder, although in the parents' case this disorder had originally been triggered by distressing events prior to their arrival in England. They were also all suffering from depressive disorders of varying intensity.

10

As I have said, three of their claims will be proceeding to trial at any event. The claim for damages for negligence is founded on the proposition that it was negligent to detain the family at Yarl's Wood and Harmondsworth because the Home Office thereby breached their obligation to take reasonable care for the family's safety, health, welfare and security. In particular it was said that insufficient or no regard was had for fire safety and for the family's safety from the criminal acts of others.

11

These allegations flow from the facts averred in paragraphs 3 to 8 of the Amended Particulars of Claim, which run along the following lines. During the period between about May 2000 and 19 th November 2001 when Yarl's Wood Detention Centre was being developed and constructed, the local county fire and rescue service had strongly advised the Home Office to install...

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