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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 422
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ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE HONOURABLE MR JUSTICE BEAN
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE KITCHIN
THE RIGHT HONOURABLE SIR MARK WALLER
| THE QUEEN ON THE APPLICATION OF SALIMI
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
INDEPENDENT POLICE COMPLAINTS COMMISION
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
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Lisa Giovannetti QC (instructed by The Treasury Solicitor) for the First Respondent & Mr Jeremy Johnson QC (instructed by Legal Services, Independent Police Complaints Commission) for the Second Respondent
Hearing dates: 28th March 2012
Crown Copyright ©
Lord Justice Longmore:
"14 Escorts for persons removed from the United Kingdom under directions
1) Directions for, or requiring arrangements to be made for, the removal of a person from the United Kingdom may include or be amended to include provision for the person who is to be removed to be accompanied by an escort consisting of one or more persons specified in the directions.
2) The Secretary of State may by regulations make further provision supplementing subsection (1).
3) The regulations may, in particular, include provision-
a. requiring the person to whom the directions are given to provide for the return of the escort to the United Kingdom;
b. requiring him to bear such costs in connection with the escort (including, in particular, remuneration) as may be prescribed;
c. as to the cases in which the Secretary of State is to bear those costs;
d. prescribing the kinds of expenditure which are to count in calculation the costs incurred in connection with escorts."
"156 Arrangements for the provision of escorts and custody
1) The Secretary of State may make arrangements for-
a. the delivery of detained persons to premises in which they may lawfully be detained;
b. the delivery of persons from any such premises for the purposes of their removal from the United Kingdom in accordance with directions given under 1971 Act or this Act;
c. the custody of detained persons who are temporarily outside such premises;
d. the custody of detained persons held on the premises of any court.
2) Escort arrangements may provide for functions under the arrangements to be performed, in such cases as may be determined by or under the arrangements, by detainee custody officers.
4) Escort arrangements may include entering into contracts with other persons for the provision by them of-
a. Detainee custody officers; or
b. Prisoner custody officers who are certified under section 89 of the Criminal Justice Act 1991, or section 114 or 122 of the Criminal Justice and Public Order Act 1994, to perform escort functions.
5) Schedule 13 makes further provision about escort arrangements."
Detainee custody officers, as mentioned in sections 156(2) and 156(4) are defined in section 147 as meaning "a person in respect of whom a certificate of authorisation is in force". Section 154 of the Act empowers the Secretary of State to certify fit and proper persons as being authorised to perform escort functions and enacts schedule 11 which makes further provision about such officers.
"41. Immigration and asylum enforcement functions: complaints and misconduct
1) The Secretary of State may make regulations conferring functions on the Independent Police Complaints Commission in relation to-
(a) the exercise by immigration officers of specified enforcement functions;
(b) the exercise by officials of the Secretary of State of specified enforcement functions relating to immigration or asylum.
(c) the provision of services pursuant to arrangements relating to the discharge of a function within paragraph (a) or (b).
2) In subsection (1) the reference to enforcement functions includes, in particular, reference to-
a. powers of entry,
b. powers to search persons or property,
c. powers to seize or detain property,
d. powers to arrest persons,
e. powers to detain persons,
f. powers to examine persons or otherwise to obtain information (including powers to take fingerprints or to acquire other personal data), and
g. powers in connection with the removal of persons from the United Kingdom.
3) Regulations under subsection (1) may not confer functions on the Independent Police Complaints Commission in relation to the exercise by any person of a function conferred on him by or under Part 8 of the Immigration and Asylum Act 1999.
7) Regulations under subsection (1) shall relate only to the exercise of functions in or in relation to England and Wales."
1) In these Regulations-
"Relevant contractor" means-
a) a contractor exercising specified enforcement functions in relation to immigration or asylum …
2) In these Regulations "specified enforcement functions" means subject to paragraph (3)-
g) powers in connection with the removal of persons from the United Kingdom;
3) The following shall not be regarded as an enforcement function-
(i) the making of an immigration decision;
(ii) the making of any decision to grant or refuse asylum; or
(iii) the giving of any direction to remove persons from the United Kingdom
3 Application: general
1) Subject to regulations 6 (general functions of the IPCC) and 72 (revocation of the 2009 Regulations, saving and transitional provisions), the IPCC shall have functions in relation to relevant officers, relevant officials of the Secretary of State, relevant contractors, officials exercising customs revenue functions and customs revenue contractors in, or in relation to, England and Wales.
2) The IPCC shall not have functions in relation to the exercise of a function conferred on a relevant officer, an official of the Secretary of State exercising specified enforcement functions in relation to immigration or asylum, or a relevant contractor exercising specified enforcement functions in relation to immigration or asylum by or under Part 8 (detention centres and detained persons) of the Immigration and Asylum Act 1999.
21 Reference of complaints to the IPCC
1) Where the complaint is-
a) one alleging that the conduct complained of has resulted in death or serious injury;
b) any complaint not falling within paragraph (a) but alleging conduct which constitutes-
(i) a serious assault, as defined in guidance issued by the IPCC
(v) a complaint which refers to an allegation of an infringement of Article 2 or 3 of the European Convention on Human Rights; or
(c) which arises from the same incident as one in which any conduct falling within paragraph (a) or (b) is alleged; or
(d) one in respect of which the IPCC notifies the relevant appropriate authority that it requires the complaint in question to be referred to the IPCC for its consideration,
it shall be the duty of the relevant appropriate authority to refer the complaint to the IPCC."
(1) a person who may be required to submit to examination under paragraph 2 above may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter.
(2) if there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A or 12 to 14, that person may be detained under the authority of an immigration officer pending-
(a) a decision whether or not to give such directions;
(b) his removal in pursuance of such directions.
(3) A person on board a ship or aircraft may, under the authority of an immigration officer, be removed from the ship or aircraft for detention under this paragraph; but if an immigration officer so requires the captain of a ship or aircraft shall prevent from disembarking in the United Kingdom any person who has arrived in the United Kingdom in the ship or aircraft and been refused leave to enter, and the captain may for that purpose detain him in custody on board the ship or aircraft.
(4) The captain of a ship or aircraft, if so required by an immigration officer, shall prevent from disembarking in the United Kingdom or before the directions for his removal have been fulfilled any person placed on board the ship or aircraft under paragraph 11 and 15 above, and the captain may for that purpose detain him in custody on board the ship or aircraft."
i) on the true construction of paragraph 16 of Schedule 2 of the 1971 Act, powers of detention only exist pending removal; once removal has begun, there are no continuing powers of detention;
ii) that is because, once a detainee subject to removal directions has been placed on board a ship or aircraft, he is under the authority of the captain who has, by international law, the power of detention; the responsibility for the detainee shifts from the immigration officer to the captain and there is thus no continuing power of detention;
iii) if there were any doubt about that as a matter of construction of the schedule, the matter is put at rest because it is to be presumed that Parliament does not intend to legislate with extraterritorial effect see e.g. Broad of Trade v Owen  AC 602, Treacy v DDP  AC 537, R (Al-Skeini) v Defence Secretary  1 AC 153 para 49 per Lord Rodger of Earlsferry;
iv) Part 8 of the 1999 Act is entitled "Detention Centres and Detained Persons" and only applies, therefore, to detainees namely persons lawfully detained;
v) once a person subject to removal directions has been placed on board an aircraft he is no longer a detainee (or at least is no longer lawfully detained once the aircraft has left United Kingdom airspace);
vi) the escorts in the present case were therefore not exercising any function conferred on them by or under Part 8 of the 1999 Act and the exclusion of those exercising such functions from the jurisdiction of the IPCC does not in any way impinge on the authority of the escorts in Baghdad who can therefore be investigated by the IPCC;
vii) it is not for these purposes relevant or necessary to ask how the escorts had authority to travel with Mr Salimi but, if it is relevant or necessary, that authority is to be found in section 14 of the 1999 Act which authorises the Secretary of State to include in any removal directions a provision for a person who is to be removed to be accompanied by an escort. The escorts in the present case were therefore exercising functions conferred or contemplated by section 14 of the 1999 Act not Part 8.
"in the United Kingdom or before the directions for his removal have been fulfilled."
The captain is then also given power to detain such person in custody on board the aircraft. It is thus clear that the captain can detain during the process of removal "if so required by an immigration officer". That must contemplate that the immigration officer's own authority to detain must last for the same time otherwise he would have no authority to require the captain to prevent disembarkation or to detain the relevant person. The provision is necessary to ensure that for this purpose the captain has to comply with the immigration officer's requirement.
"(g) powers in connection with the removal of persons from the United Kingdom,"
such regulations were not permitted to confer functions
"in relation to the exercise by any person of a function conferred on him by or under Part 8"
of the 1999 Act.
"The IPCC shall not have functions in relation to the exercise of a function conferred on a relevant officer … or a relevant contractor exercising specified enforcement functions in relation to immigration or asylum by or under Part 8 (detention centres and detainee persons)"
of the 1999 Act. "Relevant Contractor" is defined in a way that includes the escorts in the present case.
"in, or in relation to, England and Wales."