The Queen (on the application of Radha Naran Patel) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Lord Justice Underhill,Lord Justice Christopher Clarke |
| Judgment Date | 24 June 2015 |
| Neutral Citation | [2015] EWCA Civ 645 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2014/2766 |
| Date | 24 June 2015 |
[2015] EWCA Civ 645
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
His Honour Judge Thornton Q.C.
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
(Vice-President of the Court of Appeal, Civil Division)
Lord Justice Underhill
and
Lord Justice Christopher Clarke
Case No: C4/2014/2766
Mr. Steven Kovats Q.C. and Ms Jacqueline Lean (instructed by Government Legal Department) for the appellant
Miss Shivani Jegarajah and Ms Amanda Walker (instructed by Vision Solicitors Ltd) for the respondent
Hearing date: 22 nd April 2015
Introduction
This is an appeal against the order of His Honour Judge Thornton Q.C. giving judgment for the respondent, Mrs. Patel, against the appellant, the Secretary of State for the Home Department, in the sum of £125,000 by way of damages (including both aggravated and exemplary damages) for false imprisonment.
The claim arises out of a decision by immigration officers to stop and interview Mrs. Patel as she passed through immigration control at Heathrow Airport on 23 rd May 2011 on her way to visit members of her family who live in this country. She had arrived with entry clearance and a visitor's visa obtained following a successful appeal against the original refusal of her application by the entry clearance officer in Mumbai. As a result of the answers which Mrs. Patel was said to have given to certain questions put to her by an immigration officer in the course of what is known as a "desk interview" (a brief questioning at the point where disembarking passengers pass through immigration checks), it was decided that it was necessary to make further enquiries and that she should be detained for that purpose. After conducting a more detailed interview later the same evening, immigration officers decided that she intended to work while staying in this country, contrary to the terms of her visa, and refused her leave to enter. They decided that she should be detained pending her removal to India. Mrs. Patel remained in custody until she was released on 28 th May 2011.
On 26 th May 2011 a claim for judicial review of the decision to detain Mrs. Patel was issued by a solicitor instructed on her behalf. The claim included a claim for damages for false imprisonment. Following Mrs. Patel's release from detention only her claim for damages remained live and on 18 th October 2013 it came on for trial before Judge Thornton sitting in the Administrative Court. No witnesses were called to give evidence in person and the hearing was completed within the day. Over nine months later, on 30 th July 2014, the judge delivered a judgment running to 138 pages, in which he found that a number of immigration officers had conspired to give a false account of the events of 23 rd May 2011 and for that purpose had forged the notes of the two interviews with Mrs. Patel. He also found that they had subsequently given false evidence in the form of witness statements in order to cover their tracks. As a result he awarded her a substantial sum in damages for false imprisonment.
This is the appeal of the Secretary of State, who challenges the judge's decision on both liability and damages. She submits that the evidence before the judge was not capable of supporting his findings of fact and that in any event the sum he awarded by way of damages exceeded any award that could properly have been made.
The proceedings before the First-tier Tribunal
Before considering the proceedings which culminated in the order under appeal it is necessary to describe briefly other related proceedings which arose out of the events of 23 rd May 2011. On 28 th May 2011 Chief Immigration Officer Khan wrote to Mrs. Patel's solicitors informing them that he had reviewed the matter in the light of the issue of proceedings for judicial review and was "minded to withdraw the decision [sc. to refuse her entry]" and to examine her case afresh, and, if the decision went against her, to allow her an in-country right of appeal. He invited their views about withdrawing the claim for judicial review, given that an alternative remedy in the form of an appeal to the tribunal would be available to her. He suggested that would be a pragmatic and sensible way forward and gave her temporary admission pending a further decision.
On 9 th August 2011 the Secretary of State gave Mrs. Patel notice of her decision refusing leave to enter, cancelling her temporary leave to remain and giving removal directions. Mrs. Patel appealed to the First-tier Tribunal and her appeal came on for hearing before Immigration Judge Dineen on 3 rd October 2011. The Secretary of State was not represented before the tribunal, but she provided an "explanatory statement" dated 25 th June 2011 dealing with matters surrounding the questioning and detention of Mrs. Patel. That document, to which I shall refer in greater detail at a later stage, referred to events that had occurred after 25 th June and was inconsistent in some respects with an earlier explanatory statement, also dated 25 th June 2011, which the appellant had previously served. In order to resolve the confusion, Judge Dineen ordered the Secretary of State to file and serve statements explaining the discrepancies. In a letter dated 18 th November 2011 the Secretary of State stated that an immigration officer had up-dated the original explanatory statement on 1 st October 2011, but had forgotten to amend the date.
The adjourned hearing took place on 9 th November 2011. Again the Secretary of State was unrepresented and submitted no witness statements in support of her case. She relied on the explanatory statement, which stated that Mrs. Patel had been refused entry because she had been intending to work while in this country, and on the documents annexed to it, which included what were said to be contemporaneous notes of the two interviews with Mrs. Patel which were said to bear that out. Mrs. Patel relied on statements made by herself, her sister and her brother, none of whom were cross-examined. She said, among other things, that she had been interviewed several times during the course of the evening of 23 rd May 2011 and that there had been long intervals between the interviews. At no stage, she said, had she said anything to suggest that she would be sewing curtains or otherwise working for her sister.
In his decision dated 20 th January 2012 the judge noted that the explanatory statement was not evidence as such and that there were no statements verifying the notes of interview on which the Secretary of State relied. He also noted that, although the credibility of the immigration officers had been put in issue, they had not been tendered for cross-examination and the Secretary of State had adduced no evidence in support of her case. He preferred the account given by Mrs. Patel to that put forward by the Secretary of State. He stated that he was not satisfied that she had admitted intending to undertake paid work in contravention of the terms of her visa. He therefore allowed her appeal.
The proceedings before the Administrative Court
As a result of the determination of the First-tier Tribunal, the only aspect of the original claim for judicial review which remained live was Mrs. Patel's claim for damages for false imprisonment. The trial was originally listed before His Honour Judge Gore Q.C. on 30 th April 2013, but there was a dispute about disclosure and other preparatory matters and in the event the time allowed for the hearing was used for the purpose of giving directions. The judge expressed the view that the case should be transferred to the non-jury list of the Queen's Bench Division, but the claimant resisted that suggestion and the Secretary of State appears to have expressed no positive view one way or the other. As a result, the case remained in the Administrative Court with no additional directions designed to ensure that witnesses gave evidence in person and were available for cross-examination.
In my view, this was the first of a number of unfortunate procedural errors. In the grounds filed in support of her application for permission to proceed with her claim for judicial review Mrs. Patel alleged that there was no reliable evidence to support the allegation that she had said that she would undertake work in the form of sewing curtains for sister. Her case was that she had been subjected to arbitrary and malicious treatment by the immigration officers of a kind that amounted to misfeasance in public office because they had acted with reckless indifference to the lawfulness of their actions. These allegations reflected the grounds put forward by Mrs. Patel's solicitors on 18 th October 2011 when renewing her application for permission to proceed with the claim. They also reflected an allegation made in the skeleton argument deployed before the First-tier Tribunal in support of Mrs. Patel's case that the immigration officers had acted maliciously in refusing to allow her to enter the United Kingdom. If the Secretary of State had taken the trouble to read those documents and consider their implications, therefore, I do not think that she could have been in much doubt that the integrity of the immigration officers was in issue.
In those circumstances it was unfortunate, to say the least, that the claim was allowed to proceed to a hearing on the basis of documents alone in...
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