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

A challenge to an immigration detention policy on the basis that the policy was not applied is to be assessed using the Wednesbury approach. A court must not decide material unargued issues without giving the parties an opportunity to address them, nor make grave findings against individuals without hearing their response.

A false-imprisonment claim involving substantial factual disputes is generally unsuitable for documentary determination in the Administrative Court. It should be transferred to the Queen’s Bench Division or county court for trial as a Part 7 claim.

SS was detained for immigration purposes after being treated as an overstayer. He later claimed asylum and, after his release, continued proceedings seeking declarations and damages for false imprisonment. He alleged, among other matters, non-compliance with the Secretary of State’s policy concerning mentally ill detainees, breaches of the Convention, and inadequate healthcare.

The Administrative Court held that the whole detention was unlawful and breached Articles 3 and 8 of the Convention, granting a declaration and directing an assessment of damages: [2014] EWHC 50 (Admin). The Secretary of State appealed. SS accepted that material procedural and legal errors meant that judgment could not stand. The central issues were the proper disposal of the appeal and the procedure for a fair retrial.

1. The appeal was allowed. The Administrative Court judgment was set aside in its entirety. Its findings of fact and conclusions of law were to have no significance in the retrial or elsewhere. The parties remained free to advance appropriate factual and legal arguments, subject to the Civil Procedure Rules.

2. The judge had materially erred by relying on Code C of the Police and Criminal Evidence Act 1984 and guidance which neither party had raised. That deprived the parties, particularly the Secretary of State, of the opportunity to make submissions on material matters. The resulting procedural unfairness infected the decision.

3. A challenge alleging failure to apply the Secretary of State’s detention policy should have been addressed on the Wednesbury basis indicated in [2012] EWCA Civ 597. The judge neither referred to that guidance nor made clear that he had applied the required approach. Further, his Article 3 conclusion could not stand because he did not explain why the relevant legal threshold was met and his stated factual findings could not justify it.

4. Findings that officials or clinicians had wilfully breached policy or behaved with gross negligence could not properly be made without giving them an opportunity to answer the allegations. This was a further breach of natural justice.

5. The remaining false-imprisonment claim involved contested facts and allegations affecting personal integrity. It was unsuitable for determination in the Administrative Court on documents. Endorsing the comments in [2014] EWHC 1062 (Admin), the court remitted the matter to the Queen’s Bench Division for retrial as a Part 7 claim.

• Court of Appeal (Civil Division) — allowed the Secretary of State’s appeal, set aside the judgment, and remitted the claim to the Queen’s Bench Division for re-trial as a Part 7 claim: [2015] EWCA Civ 652.
• High Court (Administrative Court) — held the whole period of detention unlawful, found breaches of Articles 3 and 8 of the Convention, granted a declaration, and ordered damages to be assessed: [2014] EWHC 50 (Admin).