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Child17.  The defendant’s application was based on the proposition that the claimants were seeking to create strict liability at common law for what were (if mistakes were made) public law errors.  The defendant contended that if the claimants had a claim, it was limited to a declaration and / or a quashing order that had to be advanced by way of judicial review rather than via a damages claim for false imprisonment and that initiation of the County Court proceedings was an abuse of process.  The Home Office succeeded before the circuit judge but the Court of Appeal allowed the claimants’ appeal.  The Court of Appeal emphasised that on first principles the claimants, having been deprived of their liberty, had a prima facie private law claim arising out of their detention, with the burden then lying on the immigration officers to show the legality of the detention:

“..there is on the face of it nothing in the slightest bit peculiar about an individual bringing a private law claim for damages against an executive official who has unlawfully infringed his private rights”18.

11.The Court of Appeal rejected the proposition that an immigration officer enjoyed any immunity from a private law claim in tort in respect of what would normally be regarded as a prima facie unlawful act causing loss of liberty.  The Court noted that in Evans the House of Lords had reaffirmed in ringing tones the importance that English law attaches to personal liberty and emphasised that bad faith was not a necessary element of the tort.  The fact that the claimants’ contentions were based on alleged flaws in the exercise of discretionary detention powers was not in point.  If, for example, in making a decision to detain the relevant officer had failed to take into account material considerations as required by internal policies and / or the UN Convention then he was acting ultra vires his powers and there was no reason in principle why the private law claim could not be advanced19.  There was no need for the claimant to first obtain a declaration / quashing order establishing that the detention was unlawful20.  The Court was also unimpressed with policy arguments advanced by the defendant, commenting that any such arguments paled into insignificance by comparison with the policy arguments for permitting such a claim, given the enormity of suffering caused by unlawful detention21.

17 There were also pleaded claims in negligence and under the Race Relations Act 1976 and the HRA (based on an alleged infringement of article 14), that were not the subject of the defendant’s application.

18 See paras 54 & 57.

19 See in particular paras 59, 69-70, 100, 109, 111 & 114-115.

20 See para. 121.

21 See para. 120 & 130-132.

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