Sam Louis v The Home Office

Hearing dates: 18 th, 19 th, 20 th, 23 rd, 24 th November and 14 th December 2020

APPROVED JUDGMENT

His Honour JudgeCotterQC:

Content

Introduction

The Claimant, a national of the Democratic Republic of Congo (“DRC”) claims entitlement to damages for false imprisonment and personal injury following unlawful immigration detention by the Defendant. In accordance with the order of Farbey J the sole issue considered at the hearing was liability.

The Claimant challenges the lawfulness of his detention (after he had completed a criminal sentence), during two periods;

a. Between 18 May 2011 and 21 May 2015 (“the first detention”) and

b. Between 5 October 2015 and 20 January 2016 (“the second detention”).

As it is not in issue that the Claimant was detained during both periods the Defendant must prove that each day of that detention was lawful 1.

The issue of liability required consideration of the following questions:

a. First, was any part of the Claimant's first detention unlawful by reference to common law limitations?

b. Second, was any part of the Claimant's first detention unlawful as in breach of a public law error bearing on the decision to detain?

c. Third, if any part of the Claimant's first detention was unlawful by reference to a public law error bearing on the decision to detain, can the Defendant prove that the Claimant could and would have been detained in any event?

d. Fourth, was any part of the Claimant's second detention unlawful by reference to common law principles?

e. Fifth, was any part of the Claimant's second detention unlawful as in breach of a public law error bearing on the decision to detain?

f. Sixth, if any part of the Claimant's second detention was unlawful by reference to a public law error bearing on the decision to detain, can the Defendant prove that the Claimant could and would have been detained in any event?

g. Seventh, did the Defendant cause the Claimant to suffer personal injury?

It can immediately be seen that the first period of detention of just over four years was exceptionally long in any event. The Claimant had completed a sentence imposed by HHJ Hand QC for robbery of mobile phones (when aged 20) and was then detained for five times as long as his length of time in custody.

After his release from detention he was detained again for a period of three and a half months before his release on bail.

His appeal against the deportation order was eventually upheld by the First Tier Tribunal and unlike many other challenges to immigration detention after spending 1,573 days detained, much of this time within prisons, the Claimant has not eventually been deported.

The power of the executive to administratively detain without charge or trial is one of the most draconian powers exercised by the state over the individual. In R (Lumba) v SSHD [2012] 1 AC 245, Lord Brown (at paragraph 341) endorsed Lord Bingham's well-known statement that:

“freedom from executive detention is arguably the most fundamental and probably the oldest, the most hard won and the most universally recognised of human rights”

It is a right derived from Chapter 39 of Magna Carta (1215) and the Statute of Westminster (1354). The right to be free from arbitrary deprivation of liberty ranks high in the hierarchy of rights under the ECHR: see A v SSHD [2005] 2 AC 68 (at paragraph 36)). The Court is under a correspondingly high duty to:

“regard with extreme jealousy any claim by the executive to imprison a citizen without trial” 2

It is the Defendant's case that although the first period of detention was very lengthy, it followed conviction for a serious offence and was caused for the most part by the Claimant's deliberate and repeated deception to evade deportation. Until May 2013 the Claimant was entirely responsible for the length of his detention. He had, as one detention reviewer noted, led the Defendant on a ‘merry dance’ with attempts to establish his nationality. Although it was two years before a deportation order was made the Claimant had made assertions during that period that he was Belgian, Congolese and Somalian during that period. In fact the deportation order was made shortly after the Claimant withdrew his asylum claim based on his claimed Somali citizenship and confirmed that he was from DRC. The Defendant acted diligently throughout detention in the face of prolonged and significant deception. Once the Claimant co-operated with the ETD process from 16 ^th August 2013 onwards the prospects of removal increased significantly and detention remained justified.

Further, his repeated attempts to evade immigration controls prior to his detention, use of aliases and his previous conviction for failing to surrender to custody, and deception whilst in detention plainly suggested that his risk of absconding if released was of the highest order.

The law

The Defendant's power to detain is subject to:

a. The implied common law limits to read into the power following the decision in Hardial Singh [1984] 1 WLR 704 (commonly referred to as “the Hardial Singh principles”);

b. The limit arising from any unlawfulness caused by a breach of a public law rule bearing on the decision to detain, such as a relevant policy; see generally Lumba v SSHD [2011] 2 WLR 671.

The Hardial Singh principles were conveniently summarised in R(I) v Secretary of State for the Home Department[2002] EWCA Civ 888 (at paragraphs 46–48):

46. There is no dispute as the principles that fall to be applied in the present case. They were stated by Woolf J in Hardial Singh … in the passage quoted by Simon Brown LJ at paragraph 9 above. This statement was approved by Lord Browne Wilkinson in Tan Te Lam v Tai A Chau Detention Centre[1997] AC 97, 111A-D in the passage quoted by Simon Brown LJ at paragraph 12 above. In my judgment, Mr Robb correctly submitted that the following four principles emerge:

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 that reasonable period, he should not seek to exercise the power of detention;

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

47. Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person “pending removal” for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired.

48. It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of schedule 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences.

A useful summary of the factors which are in play when considering the reasonableness of a period of detention (or the likely period of detention) is to be found in the judgment of Ganesharajah v SSHD[2014] EWHC 3497 (QB). Ms Cheema QC (as she then was) stated:

89. Further useful principles can be...