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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Singh, R (On the Application Of) v Secretary of State for the Home Department [2018] EWHC 945 (Admin) (26 April 2018) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2018/945.html Cite as: [2018] EWHC 945 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
(Sitting as a Deputy Judge of the High Court)
____________________
THE QUEEN on the application of AMARJIT SINGH |
Claimant |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
Mayfair Solicitors) for the Claimant
Mr William Hansen (instructed by Government Legal Department) for the Defendant
Hearing date: 10th April 2018
____________________
Crown Copyright ©
Robin Purchas QC:
Introduction
a. The decision of the Defendant made on 26th January 2010, refusing the Claimant's application for an extension of his leave to remain as a tier 5 religious worker on the ground that it was not served on him as required by section 4(1) of the Immigration Act 1971 (the 1971 Act) (Ground 1);
b. The decision of the Defendant dated 17th December 2015, refusing the Claimant's application for leave to remain on human rights grounds and certifying the claim as clearly unfounded under section 94 of the Nationality Immigration and Asylum Act 2002 (the 2002 Act) on the ground that the decision was in both respects unlawful (Ground 2); and
c. His detention from 5th November 2015 until 19th February 2016 on the ground that it was unlawful (Ground 3).
There were also claims in respect of the service of notices relating to his removal, but these have become academic and were no longer pursued in this court.
Background
"You are specifically considered to be a person who has overstayed their leave to remain in the United Kingdom. You were granted leave to remain until 2nd December 2009 as a religious worker. However your most recent application was refused with no right of appeal on 26th January 2010. You are therefore liable for removal from the United Kingdom."
"Detention is only used when there is no reasonable alternative. It has been decided that you should remain in detention because …
a. You are likely to abscond if given temporary admission or release; …
d. Your removal from the United Kingdom is imminent…
This decision has been reached on the basis of the following factors:
1. You do not have enough close ties (eg family or friends) to make it likely that you will stay in one place …
8. You have previously failed or refused to leave the UK when required to do so…."
There were no other grounds or factors identified on the form.
"Assessment of risk of absconding: High – Subject is an overstayer/illegal worker in the UK. He does not have enough close ties in the UK to make it likely that he will stay in one place. He has previously failed to leave the UK when required to do so and he does not have any lawful basis to be in the UK."
"In support of your application you state that you have an outstanding application with the Home Office pending since December 2009. It is noted that this application under T5 TW – Religious Migrants was refused on 26th January 2010 with the refusal letter sent to Bababandasinghbahadur Sikh Temple, 217-218 Cheshire Road Smethwick West Midlands B67 6DJ. It is noted that the letter has not been returned to the home office as undelivered. The onus is on you as the applicant to prove that the letter has not been received."
The Defendant now accepts that the last sentence in that paragraph is incorrect in that there was no presumption of service that applied to this decision at the time, so that the Defendant had the burden of proving service on the balance of probabilities.
Legal and Policy Framework
"(1) The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions) … shall be exercised by the Secretary of State; and, unless otherwise allowed by or under this Act, those powers shall be exercised by notice in writing given to the person affected, …"
"26 The arguments for the Home Secretary ignore fundamental principles of our law. Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system: Raymond v Honey [1983] 1 AC 1, 10g, per Lord Wilberforce; R v Secretary of State for the Home Department, Ex p Leech [1994] QB 198, 209d; R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115."
"22 I readily accept Mr. Blundell's submission that the 2002 Act, in sections 82 and 105 draws a distinction between making, or taking an immigration decision, and giving written notice of that decision to the person concerned. I do not accept his submission that the same approach is to be found in the 1971 Act. Section 3 confers the power to give and to vary leave to remain. The first part of section 4(1) provides that this power shall be exercised by the Secretary of State. The second part of section 4(1) provides that the power "shall be exercised by notice in writing given to the person concerned." The notice in writing is not a subsequent step following the exercise of the power, it is the way in which the power is to be exercised. Mr. Blundell's submission invites us to read section 4(1) as though it said: "and notice in writing shall be given to the person concerned of the exercise of the power.""
"In the absence of an order made by statutory instrument under section 4(1) of the Immigration Act 1971 dealing with the giving of notice of variation of leave where there is no right of appeal, the Secretary of State has to be able to prove that notice of a decision varying leave to remain under section 3(3)(a) of the Immigration Act 1971 where there is no right of appeal was communicated to the person concerned for it to be effective. Where there is no "immigration decision" the Immigration (Notices) Regulations 2003 do not apply. Communication would be effective if made to a person authorised to receive it on that person's behalf, see Hosier v Goodall [1962] 1 All E.R. 30, but the Secretary of State cannot rely upon deemed postal service."
"(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."
"64 Trespassory torts (such as false imprisonment) are actionable per se regardless of whether the victim suffers any harm. An action lies even if the victim does not know that he was imprisoned: see, for example, Murray v Ministry of Defence [1988] 1 WLR 692, 703 a–b where Lord Griffiths refused to redefine the tort of false imprisonment so as to require knowledge of the confinement or harm because
"The law attaches supreme importance to the liberty of the individual and if he suffers a wrongful interference with that liberty it should remain actionable even without proof of special damage."
By contrast, an action on the case (of which a claim in negligence is the paradigm example) regards damage as the essence of the wrong.
65 All this is elementary, but it needs to be articulated since it demonstrates that there is no place for a causation test here. All that a claimant has to prove in order to establish false imprisonment is that he was directly and intentionally imprisoned by the defendant, whereupon the burden shifts to the defendant to show that there was lawful justification for doing so. As Lord Bridge of Harwich said in R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] 1 AC 58, 162 c – d: "The tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it."
66 The causation test shifts the focus of the tort on to the question of how the defendant would have acted on the hypothesis of a lawful self-direction, rather than on the claimant's right not in fact to be unlawfully detained. There is no warrant for this. A purported lawful authority to detain may be impugned either because the defendant acted in excess of jurisdiction (in the narrow sense of jurisdiction) or because such jurisdiction was wrongly exercised. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 established that both species of error render an executive act ultra vires, unlawful and a nullity. In the present context, there is in principle no difference between (i) a detention which is unlawful because there was no statutory power to detain and (ii) a detention which is unlawful because the decision to detain, although authorised by statute, was made in breach of a rule of public law. For example, if the decision to detain is unreasonable in the Wednesbury sense, it is unlawful and a nullity. The importance of Anisminic is that it established that there was a single category of errors of law, all of which rendered a decision ultra vires: see Boddington v British Transport Police [1999] 2 AC 143, 158 d – e.
67 Mr Beloff submits that there are inherent problems in what I consider to be the correct and principled approach. First, it fails to take account of the nature or extent of the public law error. For example, he suggests that it treats for the purposes of liability as equally unlawful a decision to detain made by an official one grade lower than that specified in the detention policy (but which is otherwise unimpeachable) and a decision to detain for which there is no statutory authority at all. Secondly, it allows what is in essence a public law challenge to be made under the guise of a private law action without any of the procedural safeguards which apply in a judicial review application. In particular, the normal time limits for judicial review proceedings are circumvented. Thirdly, judicial review is a discretionary remedy. A minor public law error may result in no substantive relief being granted at all in judicial review proceedings, whereas a claimant can bring proceedings for false imprisonment as of right.
68 I do not consider that these arguments undermine what I have referred to as the correct and principled approach. As regards Mr Beloff's first point, the error must be one which is material in public law terms. It is not every breach of public law that is sufficient to give rise to a cause of action in false imprisonment. In the present context, the breach of public law must bear on and be relevant to the decision to detain. Thus, for example, a decision to detain made by an official of a different grade from that specified in a detention policy would not found a claim in false imprisonment. Nor too would a decision to detain a person under conditions different from those described in the policy. Errors of this kind do not bear on the decision to detain. They are not capable of affecting the decision to detain or not to detain. …
70 As for Mr Beloff's other points, such force as they have derives from the fact that the detention in these cases is unlawful because it is vitiated by a public law error. The significance and effect of that error cannot be affected by the fortuity that it is also possible for a victim to challenge the decision by judicial review proceedings (which are subject to tighter time limits than private law causes of action) and that judicial review is a discretionary remedy. It is well established that a defendant can rely on a public law error as a defence to civil proceedings and that he does not need to obtain judicial review as a condition for defending the proceedings: see, for example, Wandsworth London Borough Council v Winder [1985] AC 461. The same applies in the context of criminal proceedings: see Boddington v British Transport Police [1999] 2 AC 143. Mr Beloff submits that the position of a claimant who relies on a public law error to found his cause of action and a defendant can sensibly be differentiated. But it is difficult to see how or why.
71 I can see that at first sight it might seem counter-intuitive to hold that the tort of false imprisonment is committed by the unlawful exercise of the power to detain in circumstances where it is certain that the claimant could and would have been detained if the power had been exercised lawfully. But the ingredients of the tort are clear. There must be a detention and the absence of lawful authority to justify it. Where the detainer is a public authority, it must have the power to detain and the power must be lawfully exercised. Where the power has not been lawfully exercised, it is nothing to the point that it could have been lawfully exercised. If the power could and would have been lawfully exercised, that is a powerful reason for concluding that the detainee has suffered no loss and is entitled to no more than nominal damages. But that is not a reason for holding that the tort has not been committed."
"20 … The tort of false imprisonment is compensated in the same way as other torts such as to put the claimant in the position he would have been in had the tort not been committed. Thus if the position is that, had the tort not been committed, the claimant would in fact have been in exactly the same position, he will not normally be entitled to anything more than nominal damages. The identity of the route by which this same result might have been achieved is unlikely to be significant.
21 The majority of the Justices in Lumba make it clear that nothing more than nominal damages can be awarded where the claimant would have been detained anyway. Paragraph 93 of Lord Dyson's judgment (cited above) shows that a detainee who would have remained in detention had the proper procedures been followed (and had no tort been committed) "has suffered no loss because he would have remained in detention whether the tort was committed or not". Lords Phillips and Collins agreed with Lord Dyson as to nominal damages (paragraphs 335 and 237). Lord Kerr was to a similar effect at paragraph 253 where he said: "I believe that a distinction is clearly merited between those cases where it is plain that the detainees would have been released and those where it can be shown that they would have been lawfully detained, had the correct procedures been followed" (original emphasis). None of these Justices is making a distinction between situations in which the power to detain is held by the defendant and situations where third parties would have effected the detention. …
23 As I have said, the principle dictates that the court, in assessing damages for the tort of false imprisonment, will seek to put the claimant in the position he would have been in had the tort not been committed. To do that, the court must ask what would have happened in fact if the tort had not been committed. In each of Lumba and Kambadzi, the answer was obvious. Had the torts of false imprisonment not been committed, the Secretary of State would have applied the published policy or undertaken the appropriate custody reviews. In both cases, the claimants would still have been detained. They sustained no compensatable loss. The majority of the Supreme Court determined, in addition, that vindicatory damages were not available in these circumstances (see paragraph 74 of Baroness Hale in Kambadzi)."
"64 Secondly, the question is whether the defendant can demonstrate that the claimant would have been subjected to the detention (here the unlawful curfew) not merely whether the claimant could have been subjected to such a curfew. The burden is on the defendant to show that the claimant would have been detained (here subjected to the curfew). That involves, in essence, two questions. The defendant must establish that there is a power which, used lawfully, permitted the detention (here, the imposition of the curfew). The defendant must show that the power would, not could, have been used and that the claimant would have been detained (here, subjected to the curfew).
65 It is not necessary for the defendant to show that it is inevitable that the claimant would have been subjected to the detention. It is sufficient if, on a balance of probabilities, the defendant can show that the claimant would have been detained, that is, that it is more likely than not that the claimant would have been detained. I reach that conclusion for the following reasons. The issue here is a question of the assessment of damages in civil law. The burden of proof on such questions is the usual one in civil cases, namely, the balance of probabilities, that is, is it more likely than not that the relevant event had occurred (or would have occurred)."
At paragraph 55.1.1:
"The power to detain must be retained in the interests of maintaining effective immigration control. However, there is a presumption in favour of immigration bail and, wherever possible, alternatives to detention are used (see 55.20 and chapter 57). Detention is most usually appropriate:
• to effect removal; …"
Paragraph 55.3 continues:
"Decision to detain (excluding criminal casework cases)
1. There is a presumption in favour of granting immigration bail - there must be strong grounds for believing that a person will not comply with conditions of immigration bail for detention to be justified.
2. All reasonable alternatives to detention must be considered before detention is authorised.
3. Each case must be considered on its individual merits, including consideration of the duty to have regard to the need to safeguard and promote the welfare of any children involved."
55.3.1 sets out factors influencing a decision to detain, including the following:
"All relevant factors must be taken into account when considering the need for initial or continued detention, including:
• What is the likelihood of the person being removed and, if so, after what timescale?
• Is there any evidence of previous absconding? …
• Is there a previous history of complying with the requirements of immigration control? (For example, by applying for a visa or further leave).
• What are the person's ties with the UK? Are there close relatives (including dependants) here? Does anyone rely on the person for support? If the dependant is a child or vulnerable adult, do they depend heavily on public welfare services for their daily care needs in lieu of support from the detainee? Does the person have a settled address/employment?"
Ground 1 Failure to serve the 2010 Decision Letter
Background facts
"5. The parties agree and accept that the decision of 26 January 2010 was not validly served essentially for the reasons set out in paragraphs 4-8 of the Appellant's grounds. Paragraph 82B of the Immigration (Leave to Enter and Remain) Order 2000, as amended by SI 2013/1749, does not apply to the decision under question as it only came into effect on 12 July 2013. Prior to 12 July 2013, there was no statutory instrument which dealt with the giving of notice for non-appealable decisions.
6. The giving of notice of decisions which were appealable to the First-tier Tribunal under the NIA Act 2002 was provided for in the Immigration (Notices) Regulations 2003 (SI 2003/658) as amended). Non- appealable decisions remained subject to common law and, as the Upper Tribunal held in Syed (curtailment of leave – notice) [2013] UKUT 00144 (IAC), the requirement was that the decision (there a non-appealable curtailment decision) should be "communicated to the person concerned." The Respondent accepts that, on the facts of this case, the decision was not validly notified or served in the light of these requirements.
7. The parties also agree that in the light of the foregoing ground 1 and the other grounds of review are properly arguable and should therefore be considered at a substantive hearing."
Submissions
Consideration
Ground 2 the decision dated 17th December 2017
Submissions
Consideration
Ground 3 Unlawful detention.
Submissions
Consideration
Conclusion