Assad v Secretary of State for the Home Department

A breach of an immigration detention policy does not itself establish false imprisonment where statutory authority independently warrants detention. A decision-maker must take reasonable steps to inform herself whether a published detention policy applies, but need not search every file for potentially relevant material where the detainee, particularly if represented, has been told of the proposed detention and has the opportunity to raise relevant matters. A policy protecting persons supported by independent evidence of torture requires evidence independent of the detainee’s own account. Following the making of a deportation order, section 36(2) of the UK Borders Act 2007 provides statutory authority for continued detention unless release is considered appropriate. The Hardial Singh principles nevertheless require an intention to deport, reasonable detention, and reasonable diligence and expedition.

The claimant sought compensatory, aggravated and exemplary damages for alleged false imprisonment between 30 June 2011 and 6 September 2012. He had been sentenced to imprisonment for robbery and failing to surrender and was detained thereafter under section 36 of the UK Borders Act 2007 pending consideration of deportation and asylum issues.

He alleged that detention breached the defendant’s published policy concerning persons with independent evidence of torture, the Detention Centre Rules 2001 and the Hardial Singh principles. The central issues were whether the defendant had failed to investigate the alleged torture sufficiently, whether the detention was otherwise unlawful, and whether statutory authority defeated the false-imprisonment claim.

1. The claim was dismissed. The claimant failed to establish false imprisonment.
2. The defendant’s policy stated that persons supported by independent evidence that they had been tortured were normally suitable for detention only in very exceptional circumstances. The defendant had a duty to take reasonable steps to ascertain whether the policy applied. However, that duty did not require a decision-maker to locate and scrutinise every document held on the detainee, particularly where the represented detainee had been informed of the proposed detention and could raise the issue.
3. The claimant and his solicitors had not represented that detention was inappropriate because he had been tortured. The available accounts were materially inconsistent, and there was no independent evidence supporting the particular account of torture. The policy therefore did not apply. The court also found that the claimant had not proved any breach of the medical examination requirement in Rule 34 of the Detention Centre Rules 2001.
4. After the deportation order was made, section 36(2) of the UK Borders Act 2007 required the Secretary of State to exercise the detention power unless she considered detention inappropriate. Applying R(Francis) v Secretary of State for the Home Department [2015] 1 WLR 567, that statutory warrant prevented an action for false imprisonment while it subsisted. The claimant had not pleaded that detention should later have ceased because it had become inappropriate.
5. The Hardial Singh principles were not breached. There was an intention to deport, reasonable diligence and expedition, and the 434-day detention period was reasonable in the circumstances. The court did not need to determine the Article 5 issue.
6. Had false imprisonment been established, only nominal damages would have been awarded. The court expressed no concluded view on whether very exceptional circumstances could have justified detention.

First-instance decision. No prior appellate decision is stated in the judgment.