N v Secretary of State for the Home Department

A breach of an immigration detention policy makes detention unlawful only where the breach bears on, and is relevant to, the decision to detain. Independent evidence of torture need not prove torture, but it must contain evidence beyond the detainee’s account. An unlawful removal attempt does not, without more, make detention unlawful where detention was otherwise for the lawful purpose of removal. Misfeasance in public office requires subjective knowledge of, or reckless indifference to, both illegality and probable injury, together with material damage.

The claimant sought damages for unlawful immigration detention and misfeasance in public office. She alleged that her detention became unlawful when the defendant rejected a Rule 35 report concerning alleged torture, and that her detention and attempted removal on 15 August 2012 were unlawful because further submissions had not been considered. The defendant accepted that the attempted removal contravened paragraph 353A of the Immigration Rules, but disputed the consequences for detention, the officials’ state of mind and causation of damage. The court determined whether the detention policy had been breached and whether the requirements of misfeasance were proved.

1. Detention after 12 July 2012. The Rule 35 report independently evidenced only two small, non-specific scars. Its attribution of those scars to torture merely recorded the claimant’s account. It did not express an opinion on causation or consistency. The report therefore did not amount to independent evidence of torture. The defendant’s conclusion was not irrational, and the detention policy was not breached.
2. Attempted removal on 15 August 2012. Although the defendant acted unlawfully by proceeding before considering the further submissions, the detention remained for the proper purpose of implementing lawful removal directions. The public law error did not bear on the underlying decision to detain. The alternative claim therefore failed. Even if there had been a technical unlawful detention, only nominal damages would have been recoverable because the claimant would have remained detained pending consideration of the submissions.
3. Misfeasance. The claimant had to prove subjective knowledge of, or reckless indifference to, the illegality and the probability of injury. The defendant’s failure to call the officials who made the removal decision permitted adverse inferences, but did not establish bad faith. Mistake, oversight or incompetence remained more likely than reckless indifference. The claim also failed for want of material damage. The evidence did not establish a material deterioration in the claimant’s underlying depressive condition, and her distress amounted to normal human emotion.
4. The claim was dismissed.