Law Report: Asylum-seeker's damages claim was barred

LAW REPORT: 19 March 1997

W v Home Office; Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Thorpe, Lord Justice Waller) 19 February 1997

The Home Office did not owe a duty of care to an asylum-seeker, whose detention had been unnecessarily protracted by the negligence of the immigration officers responsible for interviewing him, so as to enable him to sue the Home Office for damages for negligence.

The Court of Appeal dismissed an appeal by the plaintiff, an asylum-seeker from Liberia referred to as "W" to protect his identity, against a preliminary ruling of Sir Michael Davies, sitting as a High Court judge on 6 June 1996, in favour of the Home Office.

W claimed that, as a result of the negligence of immigration officers, he had wrongfully been detained pending resolution of his asylum claim. It was alleged that interviews of W had been conducted negligently and that the (unsatisfactory) answers to someone else's interview had negligently been placed in W's file, causing his detention to be extended beyond the date when it should have ended. The Home Office accepted that errors had been made but denied liability in negligence.

The issues raised were (1) whether the Home Office owed W a duty of care; and (2) whether, if his detention was increased by the Home Office's negligence, the additional period of detention constituted loss or damage in respect of which damages could be awarded.

Nicholas Blake QC and Tim Owen (Winstanley Burgess) for W; John Howell QC and Robin Tam (Treasury Solicitor) for the Home Office.

Lord Woolf MR, giving a judgment of the court, said it was important to stress that whatever was done by or on behalf of the defendant was done pursuant to a statutory regulatory scheme for the control of immigration into the UK of those who had no right to enter or remain. That scheme was contained in the Immigration Act 1971.

It was accepted that, under this scheme, individuals requiring leave to enter enjoyed no right or presumption of en-titlement to be at large before leave was granted. A wide discretion was given to immigration officers not only whether to admit detain or release but also in respect of the investigations they were entitled to make. The relevant statutory provisions were concerned with the giving of authority to detain; actual detention was in the hands of other persons.

It was not contested that the plaintiff was lawfully detained at all times. Nor was it contended that an invalid decision authorising detention made the detention unlawful.

The powers given to immigration officers were quintessentially those which were enforced by judicial review. No cause of action existed giving a right to damages for breach of a statutory duty and no such breach was alleged. The plaintiff sought to rely on the tort of negligence, in the form of "negligent detention".

The principles to be applied in determining whether a duty of care arose were well established. For a duty of care to arise, there must, inter alia, be a relationship of sufficient "proximity" between the party owing the duty and the party to whom it was owed. The mere existence of a relationship brought about by one party exercising a statutory power vis-a-vis another was not itself sufficient to found proximity.

The process whereby a decision-making body gathered information and came to its decision could not be the subject of an action in negligence. It sufficed to rely on the absence of the required proximity.

In gathering information and taking it into account the defendant's officers were acting pursuant to their statutory powers and within that area of their discretion where only deliberate abuse would pro-vide a private remedy. For them to owe a duty of care to immigrants would be inconsistent with the proper performance of their responsibilities as immigration officers.

In the circumstances, it was not fair or reasonable to impose liability for negligence in the case of an immigration officer performing his public duty.

The first preliminary issue would therefore be answered in favour of the Home Office. The second point therefore need not be decided, but their Lordships would have decided it in the plaintiff's favour.

Paul Magrath, Barrister

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