W v The Home Office

Where immigration officers detain a person under statutory powers while investigating whether to grant leave, the statutory relationship alone does not create a common-law duty of care. The Immigration Act 1971 confers discretionary investigative and detention powers, and a negligence duty would be inconsistent with their proper performance where the alleged carelessness forms part of the decision-making process. Public-law remedies remain the normal means of challenging delay or an improper decision. An assumption of responsibility must be shown separately. Although unnecessary to the result, the court considered that, if a duty existed, additional detention caused by negligence could constitute recoverable damage; causation remained a separate issue.

W, an asylum seeker, brought negligence proceedings against the Home Office. He alleged that negligent interviews and the placing of another person’s questionnaire on his immigration file prolonged his lawful detention while his status and entitlement to temporary admission were investigated under the Immigration Act 1971.

Sir Michael Davies, sitting as a High Court judge, decided two preliminary points for the Home Office and dismissed the claim. The points concerned whether immigration officers owed a duty of care when deciding whether to release a detained person, and whether additional detention caused by negligence could constitute recoverable damage. W appealed.

Appeal dismissed. The court held that the Home Office and immigration officers owed no duty of care in the circumstances alleged.

1. The ordinary duty-of-care analysis requires foreseeability, proximity and a conclusion that imposing liability is fair, just and reasonable. The mere relationship created by the exercise of statutory powers does not establish proximity. The court applied the principles stated in Caparo plc v Dickman (1990) 2 A.C.605, W (Minors) v Bedfordshire CC [1995] 2 A.C.633 and Stovin v Wise (1996) AC 923.
2. The statutory scheme gave immigration officers wide discretion to examine entrants, decide whether leave should be granted, and detain or release persons pending that decision. A common-law duty could not be imposed where it would be inconsistent with, or tend to discourage, the proper performance of those functions. The process of interviewing, gathering information and taking it into account was part of the discretionary decision-making process.
3. The alleged negligent questioning and reliance on an incorrect questionnaire therefore did not constitute the tort of negligence. There was no sufficient proximity, no assumption of responsibility, and no basis for treating ordinary maladministration as a private claim for damages. Judicial review, including mandamus to require a decision and certiorari to quash an improper decision, provided the ordinary remedies.
4. The comparison with Barrett v Ministry of Defence [1995] 3 W.L.R.968 did not assist W. That case involved circumstances in which responsibility had been assumed for a collapsed person; the alleged immigration inquiries did not create such an assumption.
5. The damages point did not need to be decided. The court nevertheless considered that, if a duty existed and its breach caused detention to continue longer than it should, the additional detention could constitute recoverable damage. The authorities raised a question of causation, not a rule that detention could never be damage. The court distinguished Reilly v Merseyside RHA (Court of Appeal Transcript, 28th April 1994).

The appeal was dismissed. A section 18 costs order was made, legal aid taxation was directed, and leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): dismissed the appeal and refused leave to appeal to the House of Lords. The judgment is reported at [1997] EWCA Civ 1052.
• High Court: Sir Michael Davies, sitting as a judge of the High Court, decided the two preliminary points for the Home Office on 6 June 1996 and dismissed W’s claim.