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

Under paragraph 2(1) of Schedule 3 to the Immigration Act 1971, detention of a person recommended for deportation is mandated by statute, unlike discretionary detention under paragraph 2(2). An unlawful blanket policy or failure to comply with a release-review policy does not, without more, make detention false imprisonment where paragraph 2(1) supplies the authority. The statutory mandate is nevertheless subject to the Hardial Singh limitations. Detention must facilitate deportation, last no longer than reasonably necessary, and be pursued with reasonable diligence. Those limits apply to detention continued under paragraph 2(3). When removal within a reasonable time is no longer realistically possible, statutory authority ends and damages for false imprisonment may be recovered.

The appellant appealed from the dismissal of his claim for damages for false imprisonment arising from detention pending deportation. He had been recommended for deportation after conviction and remained detained after completing the custodial part of his sentence.

His challenge concerned three periods: detention under an alleged blanket policy, detention without the review required by the Secretary of State’s policy, and continued detention after removal within a reasonable time was no longer realistically possible. The High Court held that the statutory provisions authorised detention throughout, although it would otherwise have found the second period unlawful and the third period unlawful after 1 June 2010. The central issue was whether paragraph 2(1), and continued detention under paragraph 2(3), supplied authority despite those matters.

The appeal was allowed in part. The appellant’s detention was unlawful, and an action for false imprisonment was maintainable, from 1 June 2010 to 29 September 2011. The appeal was dismissed in respect of the first and second periods and the earlier part of the third period.

1. Mandatory and discretionary detention. Paragraph 2(1) of Schedule 3 to the Immigration Act 1971 imposed a statutory obligation to detain a person recommended for deportation, subject to the Secretary of State’s power to direct release. Detention continued under paragraph 2(3) on the same basis. The distinction between paragraph 2(1) and discretionary detention under paragraph 2(2) was supported by WL (Congo), although the relevant observations in paragraph 88 of that judgment were treated as obiter: [2010] EWCA Civ 111.
2. An unlawful blanket policy and failure to comply with the release-review policy were public-law wrongs. They could be addressed by public-law relief, but did not themselves displace the statutory authority for detention under paragraph 2(1) or create a claim for false imprisonment. Where detention rested only on paragraph 2(2), however, a public-law error bearing on the decision to detain could make the detention unlawful, applying the approach in Lumba: [2011] UKSC 12.
3. Hardial Singh limits. The principles in R v Governor of Durham Prison ex parte Hardial Singh applied to detention under paragraph 2(1) and to detention continued under paragraph 2(3). Detention had to facilitate deportation, remain within a reasonable period, cease when removal within a reasonable time was no longer realistically possible, and be pursued with reasonable diligence. The statutory authority therefore ended on 1 June 2010. The distinction between the continued existence of a detention power and the lawful exercise of it, recognised in Khadir, did not prevent a false-imprisonment claim: [2005] UKHL 39.
4. The court considered that the European Convention on Human Rights article 5 issue required no separate analysis because the Hardial Singh limits supplied the necessary protection against arbitrary detention.
5. Lord Justice Christopher Clarke agreed. Sir Stephen Sedley concurred in the result but considered that paragraph 2(1) imposed an obligation to review provisional release at reasonable intervals. In his view, false imprisonment would follow where proper consideration would more probably than not have led to release. That alternative analysis did not affect the outcome.

• Court of Appeal (Civil Division) — [2014] EWCA Civ 718: allowed the appeal for the period from 1 June 2010 to 29 September 2011 and dismissed it otherwise.
• High Court of Justice (Administrative Court) — [2013] EWHC 2115 (Admin): dismissed the claim, holding that the statutory provisions authorised detention throughout.