This is the question addressed by Scotland’s Sheriff Appeal Court in Galbraith Trawlers Limited v Advocate General for Scotland  SAC (Civ) 15, in a judgment issued on 23 April 2021.
In August 2015 and December 2015 letters were issued by an immigration officer named Jack Linton purporting to detain three fishing vessels owned and operated by Galbraith Trawlers Limited. Mr Galbraith, the sole Director of Galbraith Trawlers Limited, had been charged with facilitating illegal immigration due to use of Filipino fishing crew on his vessels. Mr Galbraith’s position has always been that the crew were permitted to enter the UK without visas under section 8 of the Immigration Act 1971, in the same way that airline cabin crew do not need to obtain a visa every time a plane they are working on lands in a UK airport. Some of the crew had even been issued with decisions confirming that they had lawfully entered the UK without leave under section 8. See Darren’s briefing here for further details of how this section operates in practice.
The criminal charges against Mr Galbraith were dropped in November 2017. However in the meantime the Home Office had detained all of his fishing vessels and prevented him from earning a living.
Under section 25D of the Immigration Act 1971 a ‘senior officer’ may detain a ship used in connection with the alleged offence whilst criminal proceedings are pending. This is to ensure that the ship can be forfeited if the person is convicted and the criminal court decides to order forfeiture under section 25C. A ‘senior officer’ means an immigration officer not below the rank of chief immigration officer. Mr Linton, the immigration officer who issued the letters detaining Mr Galbraith’s vessels, was not a chief immigration officer. He therefore had no power to detain the vessels.
In December 2018 Mr Galbraith raised an action in Campbeltown Sheriff Court seeking damages of £375,000 for the losses incurred as a result of the unlawful detention of his vessels. That court issued judgement in Mr Galbraith’s favour, declaring in February 2020 that the vessels had been detained unlawfully (although the amount of damages to be awarded was left for another day). The Home Office appealed to the Sheriff Appeal Court.
Misfeasance in public office
The action against the Home Office was based on the delict (tort in England) of misfeasance in public office and the proposition that the Home Office are strictly liable for the loss incurred as a result of the unlawful detention of the vessels.
The Home Office argued initially that misfeasance in public office required malice and that this had not been averred by Galbraith Trawlers: the claims made against Mr Linton were as consistent with mere error of judgement as they were with deliberate misuse of power. However, by the time the case reached the Sheriff Appeal Court, it was common ground that knowledge that there was no power to act, or reckless indifference, is also sufficient to establish misfeasance in public office.
However it was argued that the high threshold required had not been met as Mr Linton had acted in good faith. The Sheriff Appeal Court disagreed:
“Mr Linton knew that he did not possess the requisite rank to effect a detention in terms of s25D of the 1971 Act. Further, standing the averments that Mr Linton held and would have known himself to have held a rank lower than that of Chief Immigration Officer and yet purported to detain each of the vessels there is a basis for holding that he lacked an honest belief in his power to act and also that he was at least reckless as to the probability that his actions would lead to loss for the respondent.” 
The court stopped short of declaring that Mr Linton was guilty of misfeasance in public office, as this will need to be determined after evidence has been heard. At this stage, the court was just deciding whether the claim could proceed to proof (i.e. a civil trial).
A person can claim damages for unlawful administrative action where it involves the commission of a recognised tort/delict such as false imprisonment or negligence. Unlawful action alone is not enough.
The judge below had accepted the argument advanced on behalf of Galbraith Trawlers that detention of the vessels was analogous to wrongful arrestment of a vessel in security of a civil claim, under the Debtors (Scotland) Act 1987, which is a recognised delict. As such, strict liability could be imposed. Strict liability means that a person is legally responsible for the consequences flowing from an activity even in the absence of fault.
The Home Office argued that this was an unsuitable analogy as it is a remedy in private law between individuals, whereas detention under the 1971 Act is carried out by a public official in the course of an important function, namely, immigration control. The exercise of statutory powers by a public official is regulated by the delict of misfeasance in public office which strikes a fair balance between the competing public interest and the interests of the individual. Misfeasance in public office is not a delict of strict liability (malice or recklessness is required). It was claimed that imposition of strict liability “would have an undesirable, chilling effect on public administration” .
The court rejected this argument:
“Properly understood, the action has no public law element but seeks remedies arising from allegedly unlawful action by a public official which encroached on the respondent's rights to use the vessels for the purpose of fishing for profit. That being so, we do not accept the contention advanced by the appellant that the delict of misfeasance in public office or Micosta delict is the only remedy available to an individual who seeks to complain about the lawfulness of the actings of a public official which have caused him loss.” 
The court accepted that unlawful detention under section 25 is analogous to wrongful arrestment of a vessel in security of a civil claim. As such, strict liability could be imposed.
In short, the answer to the question posed above - does the Home Office need to pay damages when an immigration officer acts unlawfully – is, in this context, yes.
However, this doesn’t mean that damages can be claimed following every successful judicial review of a Home Office decision. The answer would be different if there was no analogous tort/delict. It would depend on what the unlawful act actually was. In this case it was detention of vessels, which is a recognised delict, and therefore gives rise to liability.
Benefitting from wrongdoing
The Home Office also sought to argue that Mr Galbraith could not benefit from his own wrongdoing, in effect attempting to re-run the prosecution against Mr Galbraith deserted in November 2017. This argument was rejected by the court:
“…the cause of action here lies in the ultra vires and unlawful actions of an immigration officer in the employment of the Home Office for whom the appellant is responsible. The action does not depend on the activities of the respondent [Galbraith Trawlers] at all but relates solely to the purported detention of the vessels. In other words the respondent's case is founded not on its own illegal acts but rather on the illegal acts of those for whom the appellant is vicariously liable.” 
Essentially, the Home Office can’t get away with acting unlawfully purely because (they claim) the person suing them acted unlawfully. Or, as my mother used to say: two wrongs don’t make a right.
Was detention of the vessels unlawful?
The Home Office argued that the judge below was wrong to decide that the vessels had been detained unlawfully as the decision to detain had been made by someone else, a HMI Lindsay, who was a ‘senior officer’. Mr Linton just conveyed that decision via the letters issued in August and December 2015.
The court were not convinced:
“…the defences focus on the decision to detain and not the detention. Of course, section 25D makes no mention of the decision to detain but is concerned with detention. The averment in answer that Mr Linton's letter merely communicated HMI Lindsay's decision appears to us to be patently irrelevant and also incorrect. There is no mention in Mr Linton's letters of HMI Lindsay, far less her decision. If Mr Linton was a messenger in the sense advanced by the appellant he would be delivering HMI Lindsay's letter and thereby effecting detention in the manner contended for by the appellant. The terms of Mr Linton's letter have been referred to and are set out in the appendix to this opinion. They are clear in their terms. The letters are Mr Linton's own and make no reference to HMI Lindsay or any decision maker but instead make reference to the detention.” 
However the court was not willing to declare that detention of the vessels had been unlawful, at least not yet. Due to the Home Office’s focus on the decision to detain, the matter of who actually carried out the detentions and how these were effected remains a matter of dispute. As such, it can only be decided after the court has heard evidence.
The Home Office’s opaque defence of its actions led the court to suspect that they were not being entirely forthcoming:
“Scrutiny of the appellant's pleadings lead to the inescapable conclusion that they lack candour. The appellant admits the detention of the vessels but does not say who detained them, only who made the decision to detain. These are matters of importance and matters which ought to be within the knowledge of public officials in the Home Office who are using or contemplating using powers under the 1971 Act. The court should not have to fit the pieces of the jigsaw together unless this material information cannot or does not fall within the knowledge of the parties. The appellant must know how the detention was effected. The detention procedure was initiated, planned and carried out by the Home Office. It is therefore reasonable to expect the appellant to plead by way of answer to the respondent's averments in Article 2 how the detentions were effected.” 
We are told that amendments to the Home Office’s written case in response to this judicial criticism are forthcoming. We await with eager anticipation.
Robert Howie QC and Lesley Irvine, instructed by McGill & co Solicitors, represented Galbraith Trawlers Limited. Mark Lindsay QC, instructed by Anderson Strathern LLP, represented the Home Office.
03/06/21 Via Google03 June 2021
31/05/21 Via Google01 June 2021
15/05/21 via Google17 May 2021