The Queen (on the Application of Paolo Antonio v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeHis Honour Judge Bidder
Judgment Date21 November 2014
Neutral Citation[2014] EWHC 3894 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date21 November 2014
Docket NumberCase No: CO/9171/2013

[2014] EWHC 3894 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

His Honour Judge Bidder QC

Case No: CO/9171/2013

Between:
The Queen (On the Application of Paolo Antonio
Claimant
and
Secretary of State for the Home Department
Defendant

Alex Goodman (instructed by Toufique Hossain, Duncan Lewis, Solicitors) for the Claimant

Catherine Rowlands (instructed by Treasury Solicitor's Department) for the Defendant

Hearing dates: 28 th and 29 th October 2014

His Honour Judge Bidder QC:

1

This is an application for judicial review in which the Claimant claims a declaration that the Defendant was not entitled to make a second deportation order of the 9 th July 2013 following the revocation of an earlier order, an order quashing that second deportation order and damages and/or compensation for false imprisonment alternatively for a violation of his article 5 rights in respect of his detention in whole or in part from September 2010 to November 2013. When the claim was issued the Claimant was detained but he was released on bail by an Immigration Judge on 13 th November 2013 so that he no longer claims a mandatory order directing his release from administrative detention.

2

In summary, the Claimant had been subject to a decision to make a deportation order (a decision made on 11 th September 2008). A deportation order was made on 21 st October 2008 under section 5 (1) of the Immigration Act 1971 on the basis that his presence in the UK was not conducive to the public good. That first deportation order was made under the EEA regulations, it being then believed by the Defendant that the Claimant was Portuguese. However, on the 28 th September 2010 when he was deported under the first order the Portuguese authorities at Lisbon Airport refused him entry as they did not believe he was a Portuguese national. He was returned to the UK.

3

The first deportation order was revoked under section 5(2) of the 1971 Act on the 18 th October 2010.

4

Investigations were then begun by the Defendant, who now believes that the Claimant is Jamaican. The Defendant contends that the Claimant has been deliberately deceitful about his nationality in order to evade deportation.

5

A second deportation order, this time under the automatic deportation provisions of the United Kingdom Borders Act 2007, was made on the 8 th July 2013. An appeal has been lodged against that second deportation order which appeal has been stayed pending these judicial review proceedings.

6

The day before the first day of the hearing before me the Claimant served on the Defendant a letter seeking particulars of the powers under which the Defendant sought to detain him. As the basis for seeking those particulars underpins the Claimant's arguments as to the illegality of his detention, I should first set out that primary case.

7

The argument stems first from the famous dissenting judgment of Lord Atkin in Liversidge v Anderson [1942] AC 206. A request for particulars was made by the Claimant in the pleadings in his claim against the Secretary of State requesting details of the Secretary of State's reasonable cause to believe that there was a necessity to control the Claimant. Lord Atkin said this at 245:

"The appellant's right to particulars, however, is based on a much broader ground, a principle which again is one of the pillars of liberty in that in English law every imprisonment is prima facie unlawful and that it is for a person directing imprisonment to justify his act."

8

More recently, the necessity for strict justification of detention was considered in R. v Home Secretary, ex parte Khawaja (H.L.(E)) [1984] 1 A.C. 74. In that case it was a condition precedent to the detention of the Claimant by an immigration officer that the officer had sufficient evidence on which to base a belief that the Claimant was an illegal entrant into the UK and their Lordships held that, on an application for judicial review of an order detaining the Claimant it was for the Executive to prove to the satisfaction of the court on the balance of probabilities the facts relied on by the immigration officer justifying his conclusion that the Claimant was an illegal entrant.

9

Additionally, the Claimant relied on Lord Dyson's speech in R (Lumba) v Secretary Of State For The Home Department [2012] 1 AC 245 at paragraphs 64 to 66:

"Trespassory torts (such as false imprisonment) are actionable per se regardless of whether the victim suffers any harm. An action lies even if the victim does not know that he was imprisoned: see, for example, Murray v Ministry of Defence [1988] 1 WLR 692, 703A-B where Lord Griffiths refused to redefine the tort of false imprisonment so as to require knowledge of the confinement or harm because

"The law attaches supreme importance to the liberty of the individual and if he suffers a wrongful interference with that liberty it should remain actionable even without proof of special damage."…..

65 All this is elementary, but it needs to be articulated since it demonstrates that there is no place for a causation test here. All that a claimant has to prove in order to establish false imprisonment is that he was directly and intentionally imprisoned by the defendant, whereupon the burden shifts to the defendant to show that there was lawful justification for doing so. As Lord Bridge of Harwich said in R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] 1 AC 58, 162C-D: "The tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it."

66 The causation test shifts the focus of the tort on to the question of how the defendant would have acted on the hypothesis of a lawful self-direction, rather than on the claimant's right not in fact to be unlawfully detained. There is no warrant for this. A purported lawful authority to detain may be impugned either because the defendant acted in excess of jurisdiction (in the narrow sense of jurisdiction) or because such jurisdiction was wrongly exercised."

10

Further in his judgment Lord Dyson cited his judgment in Langley v Liverpool City Council in which the Court of Appeal held a constable liable in false imprisonment where he had removed a child under section 46 of the Children Act 1989 where he could have removed the child under a different provision through the execution of a warrant. Thus, argued Mr. Goodman for the Claimant in the instant case, it is essential that the Defendant should precisely plead the statutory power for detention throughout the period.

11

Thus the Claimant sought particulars to be precisely pleaded of how the Defendant sought to justify the admitted detention. The various grounds of claim and the grounds of defence had not resulted in the Defendant clarifying that nor had it been clarified in the skeleton argument for the Defendant served a week before the hearing. Hence the request for more detail. The particulars as sought in the letter were as follows:

"At paragraph 48 of the detailed grounds of defence (Supp Bundle page 558) and paragraph 22 of the skeleton argument (Supp Bundle Page 6040 the Defendant states "the Claimant was detained from his return from Portugal (28 th September 2010) to 5 th April 2011 only, before the Secretary of State came to the conclusion that section 32 probably applied and served notice of intention to deport under that provision."

Our counsel understands this to mean that the Secretary of State relies on the power to detain in section 36 (1) (b) of the UK Borders Act 2007 from 5 th April 2011 until 13 th July 2013.

(a) Is this correct?

(b) Please therefore could you state definitively in each case which power is relied on as authorizing detention:

(i) From 21 st September 2010 (when the Claimant was detained) until return from Portugal on 28 th September 2010;

(ii) From 28 th September 2010 to 5 th April 2011;

(iii) From 5 th April 2011 to 13 th July 2013;

(iv) From 13 th July 2013 to release in November 2013."

12

The Defendant responded by email indicating that it was "surprising and regrettable" that that matter had been raised at such a late stage in proceedings, particularly after the filing of skeleton arguments.

13

It would, no doubt, have been much better had it not been necessary for those particulars to have been requested so late but, given that detention is admitted it must earlier have been recognised by the Defendant, that, in those circumstances, it is for the person detaining to justify the detention and to show that there was a power to detain and that that power was exercised properly. The Defendant should clearly have considered prior to detaining and at all times when the issue of continuing detention had to be considered, precisely what power was being used to detain and how that power should have been correctly exercised. I suspect that the problems which have arisen following the provision of answers to those requests for particulars indicate that insufficient consideration (if any at all) was given in the past by the officers in the Defendant's department to the necessity at all times to be clear what power of detention was being used. The Claimant's case is that that was not done and that the Defendant is unable to justify the detention.

14

The answers given to the questions posed were given, on instructions, by Miss Rowlands, Counsel for the Defendant as follows, namely, that the statutory power of detention exercised by the Secretary of State, during various periods, were:

a. From 21 st September 2010 (the date when the Claimant was due to be released from...

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