FS v Secretary of State for the Home Department [2011] EWHC 1858 (QB) (19 July 2011): The claimant was an asylum seeker from Afghanistan, who arrived in the UK on 17 September 1999. Six years later he was detained by immigration authorities for a period of 24 days (from November 2005 to December 2005). His claim for asylum was still being processed by this time. The claimant pursued claims for damages for false imprisonment over his detention and misfeasance in public office arising out of the way his claim for asylum was handled. Both claims failed.
In 1999, when the claimant arrived in the UK, the Taliban was in power in Afghanistan. The Secretary of State for the Home Department (SSHD) had a policy of granting Exceptional Leave to Remain (ELR) for four years to Afghan asylum seekers if their claims for asylum failed. In January 2001 the SSHD decided to prioritise new asylum claims, such that previous claims (including that of the claimant’s from 1999) were put on hold. In April 2002 the policy of granting ELR for four years was withdrawn by the SSHD.
Had the claimant’s application for asylum been dealt with before 2002 he would probably have been granted ELR. However, following the changes in policy, the claimant was interviewed by the SSHD’s immigration officers in 2004, when his asylum claim was refused. The claimant applied for discretionary leave to remain in the UK, based on his employment, but this was refused in 2005. The claimant’s case was certified under section 96(1) of the Nationality, Immigration and Asylum Act 2002, which meant he had no further right of appeal and could be removed from the UK.
In November 2005, the claimant was reporting to the immigration when he was detained by those authorities. The claimant was served removal directions for Afghanistan in December 2005 and bail was refused. Once the claimant made applications for judicial review of the decisions to remove him, however, he was released from detention.
In terms of false imprisonment, the key issue was whether the claimant was arrested or detained. Different kinds of regulation apply to these different acts. In this case, the immigration judge held that the claimant was detained in accordance with the Immigration Act 1971, such that legislation governing arrests was inapplicable. The claimant was given reasons for his detention in accordance with regulations.
On the issue of misfeasance in public office (a tort, defined in Three Rivers District Council v Governor &Company of the Bank of England (No 3) [2003] 2AC1), the claimant argued that as soon as the SSHD was informed that the claimant was in a relationship with a British national in November 2005, it would have been apparent that the claimant’s deportation would not be imminent, and that to detain him was therefore in breach of the Hardial Singh principles (set out by Lord Dyson in R (I) v SSHD [2002] EWCA Civ 88, at paragraph 46).
The principles state that deportees may only be detained so long as it does not become apparent that the SSHD will not be able to ‘effect deportation within a reasonable period’. On this basis, the SSHD’s policies might well have been unfair to the claimant, but it could not be shown that the SSHD knowingly introduced a policy which s/he knew to be unlawful. The claim failed.