FS v Secretary of State for the Home Department

The statutory power to detain a person liable to removal is distinct from the power to arrest. The requirement to give arrest information under section 28 of the Police and Criminal Evidence Act 1984 applies to an arrest, but not to detention under paragraph 16 of Schedule 2 to the Immigration Act 1971. Continued immigration detention remains lawful where removal remains realistically imminent and the Secretary of State acts with reasonable diligence. Misfeasance in public office requires bad faith, including knowledge that the relevant power is unavailable and probable injury to the claimant. A finding that an administrative policy was unlawful or conspicuously unfair does not, without evidence of subjective bad faith, establish misfeasance.

The claimant, an Afghan national, entered the United Kingdom in 1999 and claimed asylum. His claim was delayed under a policy prioritising newer applications. After his applications for asylum and discretionary leave were refused, he was detained for 24 days pending removal.

He claimed damages for false imprisonment and misfeasance in public office. The false-imprisonment claim concerned whether he had been arrested without compliance with section 28 of the Police and Criminal Evidence Act 1984, and whether continued detention became unreasonable after further representations concerning his relationship with a British citizen. The misfeasance claim relied on the Court of Appeal’s conclusion that the deferral policy was unlawful.

1. False imprisonment—arrest and detention. The power to detain under paragraph 16(2) of Schedule 2 to the Immigration Act 1971 is distinct from the power to arrest under paragraph 17. A person may be detained under paragraph 16 without first being arrested under paragraph 17. Section 28(3) of the Police and Criminal Evidence Act 1984 applies to an arrest under paragraph 17, but not to detention under paragraph 16.
2. On the evidence, the claimant had been detained under paragraph 16 and had not been arrested. The section 28 argument therefore failed. Alternatively, if he had been arrested, he had been told the reasons for the arrest, so the claim would still fail.
3. Continued detention. Applying the principles identified in WL (Congo) v SSHD and R (I) v Secretary of State for the Home Department, receipt of further representations did not itself make detention unlawful. The representations were treated as an application, which was dealt with expeditiously. Until its refusal, and thereafter with removal directions reset, removal remained viable and realistically imminent. Continued detention was not Wednesbury unreasonable.
4. Misfeasance in public office. Under Three Rivers District Council v Governor & Company of the Bank of England (No 3), the relevant form of liability required proof that the decision-makers knew they had no power to introduce or apply the policy, lacked an honest belief in its lawfulness, and knew that it would probably injure the claimant. The Court of Appeal’s description of the policy as an abuse of power and conspicuously unfair addressed unlawfulness and consequences, not necessarily the decision-makers’ state of mind. It did not establish bad faith.
5. No evidence supported an inference that those responsible knew the policy was unlawful when introduced or applied. The claims for false imprisonment and misfeasance in public office therefore failed, and the claim was dismissed.

• Court of Appeal: In [2007] EWCA Civ 546, the defendant’s appeal in the judicial-review proceedings was dismissed. The Court of Appeal held that the policy deferring older asylum claims was unlawful.
• High Court (Administrative Court): Collins J held in [2007] EWHC 51 (Admin) that the delay was not itself unlawful, but that the removal decision and certification under section 96(1) of the Nationality, Immigration and Asylum Act 2002 were unlawful.
• High Court (Queen’s Bench Division): The present damages claim was dismissed.