B & Ors v The Home Office [2016] EWHC 1080 (QB) (12 May 2016) (12 May 2016)

In the High Court of Justice - Queen's Bench Division

A and B are nationals of the Republic of the Congo (i.e. Congo-Brazzaville). They are married and have three children, X, Y and Z.

A, B and X arrived in the United Kingdom from the Congo at various times, and Y and Z were born here. In 2000, they were granted exceptional leave to remain for four years; and then, in late 2004, A made an application for indefinite leave to remain, with B, X, Y and Z as his dependents.

In 2007, prior to that application having been determined, A was convicted of various offences of dishonesty and sentenced to a term of imprisonment. Whilst serving that sentence, the UK Border Agency ("the UKBA"), acting on behalf of the Secretary of State, served A and each family member with both a refusal of the application for indefinite leave to remain and a notice of intention to deport. Various challenges to those notices failed, appeal rights being exhausted by July 2008.

In the meantime, in March 2008, A completed the custodial part of his sentence, and he was moved from prison to administrative detention pending removal.

On 12 September 2008, immigration officers attended the home of B and her children, without notice, and detained them pending deportation. They were served with deportation orders, and detained in Yarl's Wood Immigration Detention Centre ("Yarl's Wood IDC"), to where A was also moved.

It was intended to remove the family to the Congo on 18 September 2008; but the Claimants issued an application for judicial review that day, and the removal directions ("RDs") were cancelled. As a result of the ongoing judicial review, B, X, Y and Z were released from Yarl's Wood IDC on 7 November 2008.

However, the judicial review was unsuccessful – the court found it to be unarguable, and therefore refused permission to proceed with it – and, after its conclusion, on 19 December 2008 B, X, Y and Z were re-detained. Thereafter, several sets of RDs were set; but none was effective. On one occasion, it is recorded that A, B and their family were not removed because of their own behaviour during attempts to remove them. However, on other occasions, removal failed for a reason that was clearly not their fault (e.g. escorts were not available or transport failed to appear). Over this period, X's general behaviour and mood started to deteriorate, and he exhibited some symptoms of depression.
On 18 February 2009, B and her children were again released from detention. Later, A was also released on bail.

In September 2009, RDs were set on the basis that the family would self check in for the removal flight; but they did not do so. A was detained again, and, in October and November 2009, two further attempts were made to remove him, alone; but they were unsuccessful because of his obstructive and aggressive behaviour on the first occasion, and the issue of a further claim for judicial review on the second.

On 16 May 2010, before that further judicial review had been concluded, Y attained the age of 10 years; and, because she had been born in the UK, she was then entitled to British citizenship, and thus entitled to remain in the UK. As a result, her family – upon whom she was, and still is, effectively dependent – also could not be removed. On 7 July 2011, they were all granted discretionary leave to remain.

In this action, B, X, Y and Z claim declarations and damages for false imprisonment, by having been unlawfully detained by the Secretary of State for two periods, namely 12 September to 7 November 2008 ("the first period of detention") and 19 December 2008 to 18 February 2009 ("the second period of detention").
The tort of false imprisonment has two elements: the fact of detention, and the absence of lawful authority for that detention. In this case, it is not in dispute that the Claimants were detained for those two periods. The only matter in issue is whether the Secretary of State had any lawful authority for detaining them.

The primary contention of Ms Laughton for the Claimants is that each of the decisions to detain the Claimants was unlawful, as being contrary to the Secretary of State's own policy on the detention of children then in force; and thus the whole of each period of detention was unlawful. However, alternatively, she submits that the periods of detention were unreasonably long; and, even if initially lawful, the Secretary of State did not act with reasonable diligence and expedition and there came a point in each period when it was apparent that the Claimants would not be removed within a reasonable time. The detention thus became unlawful as contravening both the Secretary of State's own policy, and the well-known principles of Hardial Singh (so-called because they are principally derived from the judgment of Woolf J in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 as restated by Lord Dyson in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 ("Lumba")).

The Secretary of State, through Ms Chan, denies that she has breached any relevant policy; but, if there was a breach, then only nominal damages would be appropriate because such breach made no difference to the decision to detain or the period of detention. She also denies that the Hardial Singh principles were breached because, throughout the periods of detention, there was always a prospect of deporting the Claimants within a reasonable time.

During the course of the trial, and having heard all of the relevant evidence, I indicated that I would give judgment on issues of liability (including making findings of fact in relation to the consequences of any breaches found), before hearing any submissions on quantum. This is the reserved judgment on liability.

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