The Home Office v TR
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Farbey |
| Judgment Date | 17 January 2019 |
| Neutral Citation | [2019] EWHC 49 (QB) |
| Docket Number | Case Nos: QB/2017/0319 QB/2018/0207 |
| Court | Queen's Bench Division |
| Date | 17 January 2019 |
[2019] EWHC 49 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
On appeal from Central London County Court
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Farbey DBE
Case Nos: QB/2017/0319 QB/2018/0207
David Mitchell (instructed by The Government Legal Department) for the Appellant
Amanda Weston QC (instructed by Irwin Mitchell Solicitors) for the Respondents
Hearing date: 31st October 2018
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Home Office appeals (with the permission of Julian Knowles J) against the order of HHJ Lamb QC sitting at the Central London County Court awarding damages to the first and second respondents for false imprisonment arising from their immigration detention. The first respondent ( TR) is a Nigerian national. The second respondent (JA) is her son. He is a British citizen through his father and he was about eight months old when he was detained. He is now nine years old. A reporting restriction is in place to protect his private life.
The respondents were detained from 9 May 2010 to 21 May 2010. Following a trial, the Judge allowed their claims for false imprisonment. He awarded £20,000 damages to TR on the grounds that part of the period of unlawful detention — from 15 to 21 May 2010 — contravened the principles in the well-known case of R v Governor of Durham Prison, Ex parte Hardial Singh [1984] 1 WLR 704. He awarded £5,000 to JA for the whole period of detention on the basis that, as a British citizen, there had been no power to detain him.
The Home Office appeals on three grounds. First, it is submitted that the Judge made an error of law by concluding that JA could not lawfully be detained because he is a British citizen. Secondly, the Judge misapplied Hardial Singh. Thirdly, the Judge failed to give adequate reasons for the sum of damages awarded to TR which was in any event excessive.
Both before the Judge and before me, Mr David Mitchell appeared for the appellant and Ms Amanda Weston QC appeared for the respondents.
Immigration history
TR arrived in the United Kingdom on 6 October 2007 and was granted leave to enter until 9 January 2008. She overstayed her leave and remained in the United Kingdom. In September 2009, JA was born. Initially, his birth certificate showed TR as his mother but the father's details were not registered.
On 23 October 2009, TR applied for asylum. On 12 January 2010, the Home Office rejected the asylum claim and refused to grant humanitarian protection. A decision was taken to remove TR from the UK and to remove JA as TR's family member.
Removal directions were set for 19 April 2010 but cancelled. On 22 April 2010, the Immigration Advisory Service (IAS) made written representations to the Home Office claiming (among other things) that JA was a British citizen through his father. The IAS attached a copy of a letter dated 17 February 2010 from a person whom I shall call DAA who claimed to be the father. The IAS also enclosed an application for the re-registration of TA's birth certificate to show DAA as the father. It was submitted that, as a British citizen, JA could not be removed and that TR should be permitted to remain in the UK to care for him.
By letter dated 7 May 2010, the Home Office rejected the representations and set directions for the removal of TR and JA to Nigeria. A Home Office file note of the same date records that TR told an immigration official that her son was British and that she was to be interviewed by a Registrar at Lambeth Registry Office on 10 June in order to prove this. Nevertheless, on 9 May 2010, TR and JA were detained pending removal on 17 May.
Both TR and JA applied to this Court for judicial review of the decision not to accept the representations of 22 April as a fresh human rights claim. On 14 May 2010, HHJ SP Grenfell (sitting as a Judge of the High Court) granted a stay of removal. On 21 May 2010, an Immigration Judge refused bail. However, for reasons which were not made clear to the Judge and which remain unclear, the Home Office had a change of mind and released TR and JA later that day. Subsequently, on 22 June 2010, DAA's name was added to JA's birth certificate.
The Proceedings
In April 2014, TR and JA commenced proceedings in the County Court seeking damages for false imprisonment. The Particulars of Claim (which were not settled by Ms Weston) ran to thirty-two pages and cited numerous provisions of law and policy which were said to render their detention unlawful.
The case came before the Judge for trial over three days in October 2017. In a reserved judgment handed down on 21 November 2017, the Judge accepted Ms Weston's submission that there was no power in law to remove JA from the UK as he was a British citizen. As the objective of his detention had been to effect his removal, the whole period of his detention — from 9 May to 21 May 2010 — had been unlawful.
The Judge regarded the Home Office as carrying the burden of proving that TA was not British. He held that there was no evidence of any honest and reasonable belief by the relevant official in the Home Office that JA was not a British citizen. In this way, he rejected the Home Office's pleaded case that JA was under a burden to prove that he was a British citizen under s.3(8) of the Immigration Act 1971 and that, absent the amended birth certificate to prove JA's paternity, there had been reasonable grounds for detaining him under paragraph 16(2) of schedule 2 to the 1971 Act. As I have mentioned, the Judge awarded JA £5,000 in damages.
As to TR, the Judge found that there were conflicts between her oral evidence and the record of what she had previously told the Home Office. He did not regard her as a reliable witness. He did accept that TR found the conditions of detention to be distressing. He found that those who detained her showed indifference or careless disregard for the welfare of a nursing mother and her child.
The Judge made a rough and ready calculation that it should have taken eight days to remove TR from the UK. He held that the commencement of judicial review proceedings had led to the prospect of an ‘indefinite’ or ‘unquantified’ extension of TR's detention. He took the view that, as the judicial review proceedings would be open-ended, it would have been apparent to the Home Office after the stay of removal imposed on 14 May that TR would not be removed within a reasonable period. The Judge considered that a period of 24 hours would have been enough for the Home Office to give consideration to the respondents' situation after the stay was imposed. It is not clear how the eight-day period fits in with this 24-hour period; but at any rate the Judge concluded that the detention of TR from 15 May until her release on 21 May 2010 was unlawful. The award of £20,000 in damages included £2,500 in aggravated damages.
Against this background, I turn to the first ground of appeal which raises the question whether there was a power to detain JA at a time when his British citizenship had not been proved; or whether his status as a British citizen in itself rendered any detention unlawful.
Ground 1: Legislative framework
Section 1(1) of the British Nationality Act 1981 states, so far as relevant, that a person born in the United Kingdom ‘shall be a British citizen if at the time of the birth his father or mother is…a British citizen’. A child's father includes a person ‘who satisfies prescribed requirements as to proof of paternity’ (British Nationality Act 1981 s.50(9A)(c)). At the time of JA's birth, a person could be treated as a child's father by satisfying the requirement that he be named as the father of the child in a birth certificate issued within one year of the date of the child's birth ( British Nationality (Proof of Paternity) Regulations 2006 reg. 2(a)). That has changed: the Regulations as amended from 10 September 2015 require that a person must in every case satisfy the Home Office that he is the natural father of the child.
It is common ground that JA is a British citizen by birth. At times, the Home Office has expressed the view that the addition of DAA's name to the birth certificate conferred citizenship on JA. That position misinterprets s.1(1) and is contrary to authority that the acquisition of citizenship by birth is automatic and requires no conferral ( R v Secretary of State for the Home Department, Ex parte Naheed Ejaz [1994] QB 496 at 501G). The Home Office's muddled position has not been helpful.
Section 3(8) of the Immigration Act 1971 provides:
‘When any question arises under this Act whether or not a person is a British citizen, or is entitled to any exemption under this Act, it shall lie on the person asserting it to prove that he is’.
By virtue of s.10(1) of the Immigration and Asylum Act 1999, a person who is not a British citizen may be removed in accordance with directions given by an immigration officer if he or she has remained in the UK without leave. Directions may also be given for the removal of a family member.
Those who may be removed under s.10(1) are (under s.10(7) of the 1999 Act) subject to the provisions for detention under paragraph 16(2) of schedule 2 to the Immigration Act 1971 which provides:
‘If there are reasonable grounds for suspecting that a person is someone in respect of whom [removal] directions may be given…, that person may be detained under authority of an immigration officer pending –
(a) a decision whether or not to give such directions;
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