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

The phrase pending his removal in paragraph 16(2) of Schedule 2 to the Immigration Act 1971 means pending completion of the removal process. A person subject to removal directions may therefore remain lawfully detained while on an aircraft and until the directions are fulfilled. Escort powers and duties arise under Part 8 of the Immigration and Asylum Act 1999; section 14 merely permits removal directions to provide for an escort. Section 41(3) of the Police and Justice Act 2006, reinforced by regulation 3(2) of the UK Border Agency (Complaints and Misconduct) Regulations 2010, excludes IPCC functions concerning Part 8 functions. The complaint therefore fell outside IPCC jurisdiction, although an alternative remedy was available through the Prisons Ombudsman.

The appellant, a failed Iranian asylum seeker, was detained and placed on a charter flight to Baghdad with British escorts. He alleged that British escorts used force and that Iraqi police assaulted him during the removal. He sought to complain to the Independent Police Complaints Commission.

The Secretary of State and the IPCC argued that the complaint concerned functions conferred under Part 8 of the Immigration and Asylum Act 1999 and was excluded by section 41(3) of the Police and Justice Act 2006 and regulation 3(2) of the 2010 Regulations. Bean J accepted that position. The appeal concerned whether the escort authority arose under section 14 or Part 8, whether detention continued during removal, and whether the IPCC had jurisdiction over conduct on the aircraft or in Baghdad.

The Court of Appeal, in a judgment of the court delivered by Lord Justice Longmore, dismissed the appeal and agreed with Bean J.

1. Continuing detention. Paragraph 16(2) of Schedule 2 to the Immigration Act 1971, properly construed, permits detention under an immigration officer’s authority throughout the removal process, not merely until removal begins. The beginning of removal is an inherently uncertain point. More importantly, paragraph 16(4) expressly contemplates that a person placed on an aircraft may be prevented from disembarking before the removal directions are fulfilled and may be detained by the captain at the immigration officer’s request. The captain’s own authority under international law does not displace the immigration officer’s continuing authority. The presumption against extraterritorial legislation is weaker in the context of removal directions and ancillary detention than in the context of criminal offences.
2. Source of escort powers. Since detention continues during removal, escort arrangements under section 156(2) of the Immigration and Asylum Act 1999 may provide for functions to be performed by detainee custody officers or prisoner custody officers. Sections 147 and 154 and Schedule 11 supply the relevant certification, powers and duties, including preventing escape and identification. Those functions are conferred or imposed by Part 8. Section 14 merely empowers removal directions to provide for an accompanying escort; it does not confer the escort’s powers or duties. Any other construction would leave the main part of the escort’s work effectively unregulated.
3. IPCC jurisdiction. Although section 41 of the Police and Justice Act 2006 permits regulations concerning specified enforcement functions, including powers connected with removal, section 41(3) prevents the conferral of IPCC functions in relation to functions conferred by or under Part 8. Regulation 3(2) of the UK Border Agency (Complaints and Misconduct) Regulations 2010 gives effect to that exclusion for relevant contractors, a category which included the escorts. The IPCC therefore had no jurisdiction to investigate the complaint.
4. The court did not need to decide the separate geographical objection based on regulation 3(1). The absence of IPCC jurisdiction was not altered by possible arguments under Article 3 of the European Convention on Human Rights, because the Prisons Ombudsman accepted jurisdiction as an alternative remedy.

1. Court of Appeal (Civil Division). On 4 April 2012, the court dismissed the appeal and upheld the conclusion that the IPCC had no jurisdiction: [2012] EWCA Civ 422.
2. High Court of Justice, Queen’s Bench Division, Administrative Court. Bean J agreed with the Secretary of State and the IPCC that the Part 8 exclusion applied. No separate citation for that decision was stated in the judgment.