Salimi, R (on the application of) v Secretary of State for the Home Department & Anor (Rev 1)

Where immigration detainee custody officers escort a detained person during enforced removal, their functions under Part VIII of the Immigration and Asylum Act 1999 continue throughout the journey, including while the aircraft is on the tarmac abroad. A complaint about their conduct is therefore excluded from the Independent Police Complaints Commission’s remit by regulation 3(2) of the 2010 Regulations. The fact that the alleged conduct occurs after boarding the aircraft does not convert the functions into functions arising solely under section 14(1). The alternative question whether the functions were exercised in, or in relation to, England and Wales did not arise for decision.

The claimant sought judicial review after the Independent Police Complaints Commission declined jurisdiction over his complaint that British contractors assisting his enforced removal had participated in a serious assault at Baghdad Airport. The Commission considered that the complaint fell within the remit of the Prisons and Probation Ombudsman. The claimant argued that the escorts’ functions after boarding the aircraft arose under section 14(1) of the Immigration and Asylum Act 1999, rather than Part VIII, and that their functions were exercised in or in relation to England and Wales. The central issue was whether regulation 3(2) of the 2010 Regulations excluded the complaint from the Commission’s jurisdiction.

1. The claim was dismissed. The alleged assault was accepted, for present purposes, to be a serious assault. If the complaint had otherwise fallen within the Commission’s remit, referral would have been required.
2. The claimant had been detained and was being escorted for the purposes of removal. Under section 156(1)(b) of the Immigration and Asylum Act 1999, escort arrangements include the delivery of detained persons for removal from the United Kingdom. The contractors were detainee custody officers performing escort functions under Part VIII.
3. Those functions did not end when the claimant boarded the aircraft. They continued throughout the journey, including while the aircraft was on the tarmac at Baghdad Airport. The escorts were therefore exercising functions under Part VIII, so regulation 3(2) of the 2010 Regulations excluded the complaint from the IPCC’s remit.
4. Section 14(1) did not alter that conclusion. It empowers the Secretary of State to direct the aircraft captain to allow escorts to accompany a person being removed; it does not itself confer the relevant escort functions. Treating the same escort conduct as falling within different complaint regimes depending on whether it occurred before or after boarding would create an improbable anomaly.
5. The court did not decide whether the functions were exercised “in, or in relation to, England and Wales”. That issue was left open because the Part VIII exclusion was sufficient to dispose of the claim.