Where the Secretary of State was obliged by section 36(2) of the UK Borders Act 2007 to detain an individual in respect of whom a deportation order had been made, that statutory warrant prevented the claimant from making a claim for false imprisonment.

Wyn Williams J, sitting in the Queen’s Bench Division, so held in a reserved judgment dismissing a claim brought by the claimant, Paul Assad, by which he sought damages in the tort of false imprisonment arising from his alleged unlawful detention. It was the claimant’s case that the Secretary of State had failed properly to apply her policy in relation to potential victims of torture when determining the question of detention.

Section 36(2) of the UK Borders Act 2007 provides: “Where a deportation order is made in accordance with section 32(5) the Secretary of State shall exercise the power of detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 (detention pending removal) unless in the circumstances the Secretary of State thinks it inappropriate.”

Paragraph 2(3) of Schedule 3 to the Immigration Act 1971, as amended, provides: “Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise).”

WYN WILLIAMS J said that there had been a failure to take a reasonable step to assess whether the Secretary of States’s policy relating to the detention of victims of torture was applicable. That would have justified a finding that the claimant had been falsely imprisoned but for the decision in R (Francis) v Secretary of State for the Home Department [2015] 1 WLR 567. In that case a foreign national, was convicted of a criminal offence, sentenced to a term of imprisonment and recommended for deportation by the Crown Court. When he became entitled to release on licence he was detained under paragraph 2(1) of Schedule 3 to the Immigration Act 1971 pending the making of a deportation order in pursuance of the court’s recommendation. When a deportation order was served his detention continued pursuant to paragraph 2(3) of Schedule 3 to the 1971 Act. In judicial review proceedings he alleged that he had been detained unlawfully. The Court of Appeal concluded that paragraph 2(1) of Schedule 3 to the 1971 Act imposed a statutory obligation to detain a person recommended by a court for deportation pending the making of a deportation order against him, subject to a discretion in the Secretary of State to order his release pending further consideration of his case. The court further concluded that paragraph 2(3) of Schedule 3 had the effect that, following the making of a deportation order in respect of a person already detained under paragraph 2(1), that person’s detention was to continue on the same basis and, therefore, the detention of a person such as Mr Francis who had been detained under paragraph 2(1) continued under paragraph 2(3) had been pursuant to statutory authority. Accordingly, the court held that for so long as such authority lasted, an action for false imprisonment would not lie. While self-evidently the statutory language in paragraph 2 of Schedule 3 to the 1971 Act was somewhat different to the statutory language in section 36 of the 2007 Act to the effect that the Secretary of State shall exercise the power of detention “unless in the circumstances the Secretary of State thinks it inappropriate” , there was no material distinction of substance between that wording and the wording of paragraph 2(3) of Schedule 3 to the 1971 Act to the effect that the Secretary of State shall continue to detain the person unless “the Secretary of State directs otherwise”. That being so, the reasoning which compelled the decision in Francis’s case was equally applicable to the statutory language deployed in the 2007 Act.