R (on the application of Francis) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Lord Justice Christopher Clarke,Sir Stephen Sedley |
| Judgment Date | 23 May 2014 |
| Neutral Citation | [2014] EWCA Civ 718 |
| Docket Number | Case No: C1/2013/2215 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 May 2014 |
[2014] EWCA Civ 718
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(ADMINISTRATIVE COURT)
His Honour Judge McKenna
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
Lord Justice Christopher Clarke
and
Sir Stephen Sedley
Case No: C1/2013/2215
and
Mr. Alex Goodman and Miss Heather Emmerson (instructed by Leigh Day) for the appellant
Mr. Tim Buley (written submissions) (instructed by Bhatt Murphy) for the intervener
Mr. Robin Tam Q.C. and Mr. Robert Kellar (instructed by the Treasury Solicitor) for the respondent
Hearing dates: 19 th & 20 th March 2014
Background
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.
The proceedings below
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 Prisonex 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 statutory warrant
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...
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