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Kuchenmeister v. Home Office and Another

Publisher United Kingdom: High Court (England and Wales)
Author High Court (Queen's Bench Division)
Publication Date 29 January 1958
Citation / Document Symbol [1958] 1 QB 496, [1958] 1 All ER 485, [1958] 2 WLR 453
Cite as Kuchenmeister v. Home Office and Another, [1958] 1 QB 496, [1958] 1 All ER 485, [1958] 2 WLR 453, United Kingdom: High Court (England and Wales), 29 January 1958, available at: http://www.refworld.org/docid/3ae6b6b814.html [accessed 20 September 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

KUCHENMEISTER v. HOME OFFICE AND ANOTHER.

QUEEN'S BENCH DIVISION

[1958] 1 QB 496, [1958] 1 All ER 485, [1958] 2 WLR 453

Hearing Date: 27, 28, 29 January 1958

29 January 1958

Index Terms:

Alien -- Detention -- Alien landing at approved airport in United Kingdom in transit to another country -- Landing for sole purpose of embarking in an aircraft at same airport -- Alien detained by immigration authorities for period preventing his embarking in outward aircraft -- No refusal of leave to land -- Whether detention by immigration authorities illegal -- Aliens Order, 1953 (S.I. 1953 No. 1671), art. 2 (1) (b).

Held:

The plaintiff was a German citizen living in Dublin. He was a person to whom leave to reside in or visit the United Kingdom would be refused by the immigration authorities. On Apr. 27, 1955, he was travelling back from Amsterdam to Dublin on a route booked with a Dutch airline and had been informed that he did not need a British visa. On that particular flight the Dutch aircraft landed at London Airport (northern section) and passengers to Dublin were to complete their journey by Aer Lingus aircraft flying from the central section of the airport. Between the two sections of the airport was a road about a mile long within the perimeter of the airport, but there were no physical controls preventing egress outside the airport by a passenger going from one section to the other. By the Aliens Order, 1953, art. 2 (1) (b) leave to land is not required in the case of an alien "who lands from an aircraft at an approved port for the purpose only of embarking in an aircraft at the same port" and remains between his landing and embarkation within "limits... approved... by an immigration officer". The plaintiff, having disembarked at London Airport (an approved port) for the sole purpose of flying on to Dublin, was detained by the immigration authorities in the buildings of the northern section for nearly two and a half hours. He was then conducted by an immigration officer to the central section to join the Aer Lingus aircraft which was about to leave from that section. He arrived too late to be allowed to board the aircraft and had to remain at the airport until the next aircraft left for Dublin on the following morning. At no time did the immigration authorities either grant him or refuse him leave to land. The plaintiff claimed damages for false imprisonment against the Home Secretary and the senior immigration officer at the northern section of London Airport.

Held: the detention of the plaintiff for so long as to cause him to miss his onward flight to Dublin was illegal because, although art. 2 (1) (b) of the Aliens Order, 1953, conferred a discretion as to the premises on which an alien might remain, it could not be exercised so as to frustrate the purpose of para. (b), viz., allowing aliens to land without leave for the purpose of embarking on another aircraft, and, if the authorities apprehended danger in allowing an alien to land under art. 2 (1) (b), their remedy was to refuse leave to land under art. 2 (2), which had not been done; therefore, the plaintiff was entitled to damages for false imprisonment.

Notes:

As to restrictions on aliens' landing and as to detention of aliens, see 1 HALSBURY'S LAWS (3rd Edn.) 510, 511, para. 988, and p. 513, para. 992, and SUPPLEMENT.

As to damages for false imprisonment, see 33 HALSBURY'S LAWS (3rd Edn.) 43, para. 79.

For the Aliens Order, 1953, art. 2, see 2 HALSBURY'S STATUTORY INSTRUMENTS (1st Re-issue) 28.

Introduction:

Action. In this action Carl Walter Kuchenmeister, the plaintiff, claimed damages against the Home Office and John Malcom, the senior immigration officer in the northern section of London Airport, the defendants, in respect of his alleged false imprisonment at London Airport, Hounslow, Middlesex, on Apr. 27, 1955. The following facts were found by BARRY, J. The plaintiff was a German citizen who, being in England in 1939, was interned until March, 1947. After his release from internment the plaintiff was required to leave England, and although the authorities in England were anxious that he should return to Germany, the plaintiff managed to obtain a visa to enter Eire and he now lived in Dublin where he carried on an engineering business; the plaintiff was a person who was fully acceptable to the authorities in Eire although the immigration authorities in this country had instructions to refuse him leave to land in England because of his previous history. In April, 1955, the plaintiff decided to visit the Hanover trade fair and accordingly he booked a return through air ticket from Dublin to Amsterdam, travelling from Amsterdam to Hanover by train. Having travelled on the outward journey, on Apr. 24, in a K.L.M. plane from Dublin to Amsterdam, stopping on the way at Manchester airport, without incident, the plaintiff decided to return to Dublin on Wednesday, Apr. 27; on arriving at Amsterdam on the homeward journey, the plaintiff was told that the flight to Dublin would be made via London and not via Manchester but he was not informed that this would entail changing from the K.L.M. plane from Amsterdam to an Aer Lingus plane at London Airport, as was the fact. Before embarking at Amsterdam for London on the K.L.M. plane, the plaintiff was told that he would not require a British visa, and while landing cards were issued to passengers on the K.L.M. plane who were travelling to the United Kingdom, the plaintiff, on showing the air hostess his through ticket to Dublin, was not given a landing card; nor were the other passengers on the plane who were bound for Eire. The K.L.M. plane landed at London Airport at about 6 p.m. on Apr. 27, the plaintiff having a passage booked on an Aer Lingus plane which was due to leave London Airport at 8.45 p.m. that day; passengers who were travelling on the Aer Lingus plane were asked to check in forty minutes before its departure.

At Manchester airport, where the plaintiff had previously landed in transit, there were no difficulties regarding transit passengers in respect of whom there were instructions to refuse leave to land in England because, there, passengers were disembarked and re-embarked without leaving the tarmac and were kept segregated while at the airport; but the position at London Airport on Apr. 27 was different. London Airport, which was an "approved airport" within the meaning of the Aliens Order, 1953, was divided into two sections, the northern and the central section which were some distance apart, and access between the two sections was obtained by a road within the perimeter of the airport which travelled through a tunnel and across the airport for about one mile; the northern section of the airport was near to the public highway and there were no physical controls to prevent someone who was travelling on the road between the two sections from walking out of the airport. On Apr. 27 the K.L.M. company were operating their planes from the northern section of the airport while Aer Lingus were operating their planes from the central section; it was therefore necessary for the plaintiff, in order to continue his journey from London Airport to Dublin, to proceed from the northern to the central section of the airport. Having disembarked from the K.L.M. plane at the northern section, the plaintiff, with other passengers from the plane, was taken to the arrival lounge in that section and from there he was taken to be interviewed by the immigration officers; the plaintiff showed his German passport and certificate of registration under the Aliens Order, 1920, to one of the officers and was then asked for his landing card but, having told the officer that he did not have a card, he was asked to complete one and in answer to one of the questions on the card relating to his proposed address in the United Kingdom, the plaintiff wrote "None; in direct transit to Dublin only". The plaintiff was then seen by another immigration officer, Mr. McHugh, who consulted a reference book in which, it was the plaintiff's impression, he found the plaintiff's name; immigration authorities had available to them particulars of those aliens to whom they were to refuse leave to land. Thereafter the plaintiff was kept waiting on a chair in the corner of the room; he protested several times that he had no intention or wish to enter this country, that he was in transit and that he failed to understand why further inquiries about him were necessary. In due course all the other passengers were cleared and the plaintiff was left sitting alone in the room; when it was 8 p.m., he told the officers that he had to check in with Aer Lingus before boarding the plane on which his passage was booked and which left at 8.45 p.m., but he was still told that he must wait, and finally, at 8.25 p.m. a Mr. Wysman, an immigration officer, said that he would take the plaintiff to the Aer Lingus checking-in desk in the central section of the airport and would try to get him aboard his plane, but, although Mr. Wysman did everything he could to enable the plaintiff to board the plane which was then about to depart, owing to the fact that the central section had only recently begun to operate and to the fact that Aer Lingus were operating a new type of aircraft, he was unsuccessful in his efforts and the plane departed without the plaintiff. The plaintiff was driven back to the northern section where he waited for about forty minutes and was then driven back again to the central section and taken to the transit lounge where he remained for the night. He was made as comfortable as possible; there was a bar in the lounge and refreshments were available, as was lavatory accommodation. The next morning, viz., Apr. 28, the plaintiff was put on an Aer Lingus plane which left London Airport at 7.45 a.m., and his passport, certificate and papers were returned to him. As a result, the plaintiff missed some appointments which he had in Dublin in the early part of the morning of Apr. 28, although he did not claim that he thereby suffered any direct pecuniary loss. The plaintiff was never either refused or granted leave to land at London Airport.

The evidence for the defendants showed that when the plaintiff filled up his landing card, one of the immigration officers in the northern section of the airport, Mr. McHugh, realised that there were instructions issued to the immigration authorities regarding the plaintiff, and having looked these up in his office, Mr. McHugh reported the matter to Mr. Malcolm, the senior immigration officer in the northern section of the airport and one of the defendants to the action. Mr. Malcolm instructed Mr. McHugh to ask the plaintiff about his antecedents, whereon the plaintiff embarked on a long history of himself, which dated back to before the war. Mr. Malcom then instructed Mr. McHugh to telephone the department of justice in Eire who stated that they had no objection to the plaintiff being allowed to continue his journey to Dublin and landing there. Mr. Malcolm gave evidence to the effect that the plaintiff's position was an exceptional one as, while he was a person regarding whom there were instructions to refuse leave to land in England, yet he had a genuine desire not to remain in this country but to proceed with his flight to Dublin; unless the plaintiff was given leave to land, there were grave difficulties in allowing him to proceed along the road from the northern to the central section of the airport. Mr. Malcolm thought that, in law, his duty was to return the plaintiff to Amsterdam but he told the plaintiff that, if he wished, he would seek higher authority to allow the plaintiff to proceed to Dublin; this, in fact, Mr. Malcolm did, and it was intimated to him by the Home Office, at about 8.20 p.m. on Apr. 27, that the plaintiff could proceed to the central section of London Airport and there embark on the Aer Lingus plane on which he had his passage booked.

In the above circumstances the plaintiff claimed damages in respect of the period that he was detained at London Airport contending that that detention amounted to false imprisonment; the defendants contended that the plaintiff was properly detained at the airport under powers contained in the Aliens Order, 1953.

Counsel:

L. G. Scarman, Q.C., and W. A. B. Forbes for the plaintiff. The Solicitor-General (Sir Harry Hylton-Foster, Q.C.) and Rodger Winn for the defendants.

PANEL: Barry, J.

Judgment By-1: BARRY, J.

Judgment One:

BARRY, J., having stated the facts, and having considered the evidence which was given by the defendants' witnesses, continued: It is right for me to say this: I am quite satisfied that throughout, Mr. Malcolm and the other officials concerned regarded themselves as being in a somewhat difficult position. On their view of their duties under the Aliens Order, 1953, they were under the impression that, in strict law, the plaintiff was not entitled to travel from the northern buildings to the central buildings and so to embark on the Aer Lingus flight. Being faced with that difficulty (which in their minds at least was a genuine difficulty) I am satisfied that they did their best to secure that the plaintiff was put to as little inconvenience as possible and tried, to the best of their ability, to ensure that he did in fact catch the aircraft which took off at 8.45 p.m. However, owing to the various activities to which I have referred n+, their hope that the plaintiff would be in time to catch that aircraft was not fulfilled.

* The senior immigration officer at the northern section of London Airport, and one of the defendants to the action.

n+ See p. 487, letter G, ante.

The question which I have to consider is whether Mr. Malcolm and his officials correctly interpreted their powers and duties under the Aliens Order, 1953. If in fact they incorrectly interpreted their powers and duties, that would not be a very surprising feature of the case. The exact effect of the Order of 1953 on circumstances of the kind now under consideration is by no means free from doubt. I have had the benefit of an argument as to the correct interpretation of the order which has lasted some two and a half days. I am now about to express my views with regard to it, having had the advantage of that argument. Even with that advantage I do not pretend that I have complete confidence in the interpretation which I propose to adopt. It may well be that elsewhere my interpretation will be found to be wrong. In these circumstances, I am bound to say that I think no possible blame can attach to Mr. Malcolm for any misapprehension which he may have had as to the real meaning of this order.

The Aliens Order, 1953 *, was made under the powers conferred on the Crown to make regulations by Order in Council imposing restrictions on aliens. That power is to be found in s. 1 of the Aliens Restriction Act, 1914, as at present amended by the Aliens Restriction (Amendment) Act, 1919. The order that I am about to construe was, as I have said, made in 1953, and it provides, under art. 1 (1):

* S.I. 1953 No. 1671.

"Subject to the provisions of this order, an alien shall not land or embark in the United Kingdom except with the leave of an immigration officer, and shall not so land or embark elsewhere than at an approved port or at such other place as an immigration officer may in any particular case allow." I need not read the rest of art. 1, which defines the words "land" and "embark", and which empowers the Secretary of State to designate the ports and airports which can be regarded as approved. In fact, by a subsequent statutory instrument, the Aliens (Approved Ports) Order, 1954 n+, the Secretary of State approved London Airport as being one of the approved airports within the meaning of art. 1 of the Order of 1953.

n+ S.I. 1954 No. 391.

Article 2 of the Order of 1953 reads:

"Exception for certain aliens landing temporarily. (1) Subject to para. (2) of this article, leave to land shall not be required under art. 1 of this order... (b) in the case of an alien who lands from an aircraft at an approved port for the purpose only of embarking in an aircraft at the same port, and remains, throughout the period between his landing and embarkation, within such premises or limits as may be approved for the purpose by an immigration officer."

That is the article, art. 2 (1) (b), on which the plaintiff founds his case.

Paragraph (2) of art. 2 of the Order of 1953 reads:

"Notwithstanding anything in para. (1) of this article, an immigration officer may at any time -- (a) give notice to an alien who is for the time being on board a ship or aircraft prohibiting him from landing without leave thereunder; or (b) grant or refuse leave to land to an alien who is within the United Kingdom after landing without leave thereunder; and thereupon the said para. (1) [of art. 2] shall cease to apply to the alien." Then there is art. 3, which deals with the common travel area, and I think it is conceded that by virtue of the provisions of that article the plaintiff did not require leave to embark from the United Kingdom. The only requirement, if any, was the requirement of a leave to land.

The next material article of the Aliens Order, 1953, is art. 7. Paragraph (1) of that article requires every person over sixteen to produce certain documents, including a passport, to an immigration officer if so required. Paragraph (2) of art. 7 requires those same persons to give information asked for by the immigration authorities. Paragraph (3) of art. 7 reads:

"Notwithstanding anything in art. 1 of this order, an alien may land, without the previous grant of leave to land, for the purpose of examination under this article in accordance with arrangements in that behalf approved by an immigration officer, and if he submits himself forthwith to such examination shall be deemed for the purposes of this order not to have landed unless and until such leave is granted to him; and an alien who lands as aforesaid may be detained, pending and during the examination, under the authority of an immigration officer."

Therefore, para. (3) of art. 7 gives an express power of detention to immigration officers in the case of aliens who land without previous grant of leave for the purpose of examination under art. 7. At one time the provisions of para. (3) of art. 7 were relied on by the defendants as a justification for the plaintiff's detention, but in my judgment it is clear that the provisions of para. (3) of art. 7 relate solely to aliens who land for the purpose of being examined under the provisions of that article, and I am quite satisfied that the plaintiff did not land for that purpose but for the purpose -- and the sole purpose -- of embarking in an aircraft at the same port as that in which he had arrived.

Certain other express powers of detention are given to immigration authorities under the Aliens Order, 1953. Article 8 refers to the removal of aliens from the country who have been refused leave to land. I need not refer to the first three paragraphs of art. 8 but para. (4) thereof reads:

"An alien to whom leave to land is refused may be detained, under the authority of an immigration officer, pending the giving of directions in his case under para. (1) of this article and pending his removal in pursuance of directions so given; and where any such alien is on board a ship or aircraft he may, under the like authority, be removed therefrom for detention under this paragraph".

Now, it is quite clear that at no time during the course of this ill-fated visit to London Airport was the plaintiff refused leave to land, and in those circumstances it is clear, in my judgment, that para. (4) of art. 8 has no application to the facts of the present case.

Article 9 relates to aliens who have landed unlawfully in this country, and again confers certain powers on immigration authorities and others. In the present case it cannot be suggested that in the first instance at least the plaintiff landed unlawfully in this country. He landed, it is true, without having obtained leave to do so, but he landed, as I find -- and as, indeed, very soon became apparent to the immigration authorities -- from an aircraft at an approved port for the purpose only of embarking in an aircraft at the same port. In those circumstances, under the provisions of art. 2 (1) (b), his landing was lawful, as no leave to land in those circumstances, under art. 1 of the Order of 1953, is required. Further than that, there is no evidence that during any part of his enforced sojourn at London Airport he failed to remain within such premises or limits as were approved for the purpose by an immigration officer.

Therefore, it cannot be suggested that at any period the plaintiff was in the position of an alien who had landed unlawfully or, as I have said, of an alien to whom leave to land had been refused. Similarly, it is right to say that the plaintiff was never in the position of an alien to whom leave to land had been granted. It is quite clear from Mr. Malcolm's evidence * and from a report made by Mr. McHugh * on this whole incident on Apr. 29, 1955, that leave to land was at no time either given or refused.

* Mr. Malcolm and Mr. McHugh were immigration officers at London Airport.

Now, the gist of the problem is this: The defendants' contention is that it is within the sole discretion of the immigration authorities to lay down the prescribed limits or premises in which an alien landing under the provisions of art. 2 (1) (b) of the Order of 1953 may remain. For various reasons, some of which are obvious, Mr. Malcolm considered that aliens landing at the northern section of the airport should be confined to the transit hall and certain other buildings in that section of the airport. His view was, and the defendants' view is today, that if aliens were allowed to stray beyond those very narrow limits and wander off unescorted towards the central buildings, all effective control over their movements would be lost, because unless a policeman was sent to accompany them it was perfectly open to them never to proceed to the central buildings at all but to walk out of the airport and so travel to any part of England. "In those circumstances", say the defendants, "we were entitled to say that, having landed -- and lawfully landed --under art. 2 (1) (b), the plaintiff was bound to remain in the transit lounge, or certainly in some part of the buildings of the northern section of the airport. All we did was to confine him within that perimeter, and in the circumstances it cannot possibly be alleged that we were guilty of any unlawful or enforced imprisonment. The plaintiff's rights were limited. He could only pray in aid art. 2 (1) (b) of the Order of 1953 so long as he remained for the whole period between his landing and embarkation within such premises or limits as may be approved for the purpose by an immigration officer, and the fact that remaining within those limits caused him to lose his flight to Dublin is a very unfortunate fact but one which was quite unavoidable and about which the plaintiff has no legal ground for complaint". According to the defendants' view, if the plaintiff was to proceed outside the narrow confines of the northern buildings, or such parts of the northern buildings as were approved by the immigration authorities, he required leave to land. He never obtained leave to land, and in those circumstances no wrong has been done to him by insisting that he remain until some time about 8.30 that evening in those northern buildings.

Counsel for the plaintiff puts the case in this way: The plaintiff was undoubtedly detained in the northern buildings at the airport, and detained for so long a period that he was unable to catch the aeroplane on which his passage from London to Dublin had been booked. The defendants, says counsel, must justify that detention. Certain grounds on which they sought to justify it have been shown to be unsound. As I have already indicated, art. 8 (4) of the Order of 1953, one of the articles which provides an express power of detention, only applies to aliens refused leave to land; and para. (3) of art. 7 which again provides an express power of detention, relates only, as I have found, to aliens who have landed for the purpose of examination under art. 7.

Counsel for the plaintiff concedes that the defendants could have provided themselves with a justification for the plaintiff's detention, because it is I think conceded on all hands that the powers conferred on the immigration authorities by art. 2 (2) could have been utilised at any period during the evening with which we are concerned. It would have been open to Mr. Malcolm and the officials under him at any time during that evening to refuse the plaintiff leave to land, even though he had in fact landed lawfully under the provisions of para. (1) of art. 2. Further than that, of course, they could have prevented him from leaving the aircraft at all by acting under sub-para. (a) of art. 2 (2). Counsel for the plaintiff's case is, however, that unless the immigration authorities elected to proceed under para. (2) of art. 2, they cannot by indirect means secure the detention of an alien by a quite arbitrary exercise of their discretion under art. 2 (1) (b). This brings me to the one vital question in this case -- assume that the immigration authorities do not put into operation their powers to grant or refuse leave to land, can they, by an exercise of their discretion as to the premises or limits within which an alien who has landed under art. 2 (1) (b) may remain, effectually defeat the purpose for which the alien in fact landed under that paragraph, namely, for the purpose of embarking in an aircraft at the same port? If they can do so, then the plaintiff has no possible ground for complaint in law, however much he may feel that this was an unreasonable exercise of the powers conferred on the immigration officials. If they cannot do so, then what are the justifications for the plaintiff's detention during this very considerable period -- upwards of two-and-a-half hours -- in the buildings in the northern section of the airport?

I have come to the conclusion that, subject of course to all the other powers which are vested in them, the immigration authorities cannot so exercise the discretion conferred on them by the latter limb of art. 2 (1) (b) as to frustrate the purpose for which sub-para. (b) was (I do not say "enacted", because it is not an Act of Parliament) included in the Order of 1953. As I see it, the policy of the Aliens Order, 1953, is that an alien should be allowed to land without leave under certain limited conditions, all but one of which the plaintiff has admittedly fulfilled. He landed from an aircraft, he landed at an approved port, and, as was very soon apparent to the immigration officials, he landed for the purpose only of embarking in an aircraft at the same port. Having fulfilled those conditions, were the defendants or the immigration officials entitled to prevent him from carrying out his purpose by limiting the premises or limits within which he might remain between his landing and embarkation in such a way as to render his embarkation impossible? In my judgment they were not. As I see it, this provision -- that is to say, the provision contained in art. 2 (1) (b) -- was inserted in the Order of 1953 to confer the privilege of landing without leave on a certain limited class of aliens who were entering the approved airport not for the purposes of visiting the United Kingdom but merely in transit to some other area outside the United Kingdom. It is true that sub-para. (b) of art. 2 (1) does confer a discretion on the immigration authorities as to the premises or limits in which the alien may remain while he is on British soil, but I accept counsel for the plaintiff's argument that that discretion in effect relates to the geographical situation of the premises or limits in which that alien may be. I do not think that the word "may" confers so wide a discretion on the immigration officials that they may purely capriciously say: "We are going to limit the area in which the alien may remain in such a drastic way that he is faced with the alternative of either returning from where he came or remaining permanently detained in a small area of the airport from which access to the aircraft in which he wishes to continue his journey cannot be obtained".

The conditions imposed on the alien, if he is to take advantage of this enabling order, are conditions which he must fulfil. The alien must land from an aircraft, he must land at an approved port, and he must land for this very limited purpose referred to in sub-para. (b) of art. 2 (1). He must also remain within the approved premises or limits. All those are obligations imposed on the alien, and unless he complies with those obligations he cannot rely on sub-para. (b) and he becomes a person who has unlawfully landed in this country. It seems to me a corollary that if a requirement is placed on an alien to remain within certain prescribed areas, certain areas must in fact be prescribed, and if the immigration authorities prescribe no area at all in which he may remain, or if they prescribe an area which renders his onward flight impossible, then to my mind they are frustrating the whole purpose of this provision and are acting outside the jurisdiction and discretion which is conferred on them by sub-para. (b) of art. 2 (1). I do not feel impressed as to the dangers to which this interpretation may give rise. The immigration authorites are armed with ample powers. If they feel it dangerous to allow either the plaintiff or any other alien to move from the northern section of the airport to the central section, they can refuse him leave to land. Further than that, I am inclined to the view that, as they are entitled to approve the premises or limits, it would be quite open to them to say that the alien must travel from the northern buildings to the central buildings in a motor car provided by them or provided by the aircraft company in which either an immigration official or a policeman is also travelling. Be that as it may, if any danger is apprehended the remedy is the refusal of leave to land. Here the immigration authorities did not refuse leave to land, and in those circumstances I think that their purported detention of the plaintiff under the terms of art. 2 (1) (b) of the Order of 1953 -- namely, by confining the approved area to the northern building -- was outside their powers and was illegal.

The question therefore arises whether or not the plaintiff can maintain an action for wrongful imprisonment. As I have already indicated, if the immigration authorities were entitled to confine the approved area to the narrow limits to which they did in fact confine it, then of course the plaintiff could not say that he had been wrongfully imprisoned. If, however, they were not entitled to so confine the permitted area as to prevent him from obtaining access to the aeroplane for the purpose of catching which he had landed at the airfield, then I think that he is entitled to regard that as an unlawful imprisonment. His liberty was restricted to a greater degree than the immigration authorities were entitled to restrict it under art. 2 (1) (b). The fact that they might have restricted his liberty by employing the powers conferred on them by other articles of the Order of 1953 seems to me to be immaterial. It is no answer, when a man says: "I have been unlawfully arrested without a warrant", to reply: "Well, had I, the person making the arrest, taken the trouble to go and get a warrant, I would undoubtedly have got it". That would be no answer to a claim for unlawful arrest. Similarly here, although Mr. Malcolm and his colleagues could have detained the plaintiff by refusing him leave to land, that does not entitled them to detain him on the grounds on which they did.

I have indicated that no express powers of detention are conferred under art. 2 (1) (b). Counsel for the plaintiff has rightly conceded that immigration officials would be entitled to a reasonable time in which to satisfy themselves that the alien who arrived at the approved port really did intend to embark in an aircraft at the same port. If the immigration authorities' inquiries had been confined to that question and they had been completed within a reasonable time, the plaintiff would have raised no complaint: certainly counsel disclaims any suggestion that he would raise any complaint on the plaintiff's behalf.

Similarly, I think, without deciding the point, that they would be entitled to a reasonable time to consider whether or not to refuse the alien leave to land. Here that point does not appear ever to have been considered at all, and if it were considered it would not give rise to the type of inquiry which formed the subject-matter of the various telephone messages and conversations which took place between shortly after 6 and approximately 8.30 on the night of Apr. 27. Whatever view one takes of this case, on the interpretation of the law which I now adopt, I cannot see that this delay of nearly two-and-a-half hours could possibly be regarded as reasonable. If I am wrong as to my view of the law, then of course no question as to reasonable time arises, because the plaintiff has never been unlawfully detained. On the law as I understand it, therefore, the plaintiff is entitled to recover damages.

The plaintiff does not ask for an extravagant figure, but, on the other hand, it would be quite wrong for the court to award a contemptuous figure. No pecuniary damage has been suffered, but the very precious right of liberty, which is a right available to everyone who can for the time being be regarded as a subject by local allegiance of Her Majesty, is one which must be protected. Doing the best I can, I think that a fair figure which will vindicate the plaintiff's rights without amounting to a vindictive award would be a sum of @ 150. I need hardly say that I should have felt fully entitled to increase that amount to a very great extent if there had been any suggestion here that the plaintiff was being ill-treated by any of the officials concerned. I am quite satisfied that all the officials genuinely considered that they were doing the best possible thing in difficult circumstances, and in my judgment no blame of any kind rests on them. As I have found, they were called on to decide a very difficult point which I have dealt with, whether rightly or wrongly, with the assistance that has been given to me by the learned Solicitor-General and Mr. Rodger Winn, Mr. Scarman and Mr. Forbes, over a period, as I say, of some two-and-a-half days. In these circumstances, there must be judgment for the plaintiff for @ 150.

DISPOSITION:

Order against the Crown and judgment against the second defendant accordingly.

SOLICITORS:

Chalton Hubbard & Co., agents for Marsh & Ferriman, Worthing (for the plaintiff); Treasury Solicitor (for the defendants).

Copyright notice: Crown Copyright

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