Detention Greg Ceallaigh and Louise Hooper Garden Court Chambers - - PowerPoint PPT Presentation

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An Introduction to Immigration Detention

Greg Ó Ceallaigh and Louise Hooper Garden Court Chambers 2 July 2020

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Introduction to the law of Immigration detention - Issues

• Sources of the power to detain
• Limitations on the power to detain: (1) Hardial Singh
• Limitations on the power to detain: (2) Breach of a public law rule (Lumba)
• Limitations on the power to detain: (3) Human Rights Act 1998
• Limitations on the power to detain: (4) EU law – Hemmati
• Limitations on the power to detain: (5) Other statutory constraints
• Consequences of unlawful detention: Relief and quantum

4

Power to Detain

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Sources of the power to detain

• Immigration Act 1971, Schedule 2, paragraph 16(2)
• Immigration Act 1971, Schedule 3, paragraph 2(2) and 2(3)
• UK Borders Act 2007, section 36

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Sources of the power (1) – illegal entrants and overstayers

• Paragraph 16(2) of Schedule 2 to the Immigration Act 1971 provides as follows:

(2) If there are reasonable grounds for suspecting that a person is someone in respect

• f whom directions may be given under any of [paragraphs 8 to 10A or 12 to 14], that

person may be detained under the authority of an immigration officer pending—(a) a decision whether or not to give such directions; (b) his removal in pursuance of such directions.

• This is essentially the main power to detain illegal entrants, also applied to those subject to

removal as overstayers by section 62 of the Nationality, Immigration and Asylum Act 2002.

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Sources of the power (2) – deportation cases

• Paragraph 2 of Schedule 3 to the Immigration Act 1971 provides as follows:

(2) Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision)

• f a decision to make a deportation order against him, and he is not detained in

pursuance of the sentence or order of a court , he may be detained under the authority

• f the Secretary of State pending the making of the deportation order.

(3) 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 immigration bail under Schedule 10 to the Immigration Act 2016.

• This is the primary means by which those subject to deportation action are detained

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Sources of the power (3) – consideration of deportation

• The UK Borders Act 2007 provides as follows at paragraph 36:

“(1) A person who has served a period of imprisonment may be detained under the authority of the Secretary of State– (a) while the Secretary of State considers whether section 32(5) [on automatic deportation] applies, and (b) where the Secretary of State thinks that section 32(5) applies, pending the making of the deportation order.”

• This is the provision that the Secretary of State uses to detain while considering whether to

make a deportation order (s36(4) cross-applies provisions in the 1971 Act to this power).

9

Limits on the power to detain

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Limitations on the power to detain (1) – Hardial Singh

• The main limitations on the power to detain are those read in by Woolf J in R v Governor of

Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704. In that case Woolf J said (§7): “Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorize detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention.”

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Limitations on the power to detain (1) – Hardial Singh

• What are known as the “Hardial Singh principles” were first distilled from that decision by

Lord Dyson in R (I) v SSHD [2002] EWCA Civ 888, [2003] INLR 196 at §46 (approved by the Supreme Court in Lumba) as follows: (i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose; (ii) The deportee may only be detained for a period that is reasonable in all the circumstances; (iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary

• f State will not be able to effect deportation within a reasonable period, he should not

seek to exercise the power of detention; (iv) The Secretary of State should act with reasonable diligence and expedition to effect removal.

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Hardial Singh – key points

• The High Court’s jurisdiction to consider the lawfulness of detention is not restricted to a

consideration of Wednesbury unreasonableness, but rather it must consider whether detention was and is “lawfully exercised” (R (A) v SSHD [2007] EWCA Civ 804). This depends on all the facts of the case – which the Court must find for itself.

• The fact that a person was refused bail does not mean that their detention was lawful for the

purposes of Hardial Singh or anything else (Lumba at §118).

• The Hardial Singh analysis is calibrated in cases where detention is for the purposes of

consideration of whether to deport – e.g. for a reasonable period to consider if the exceptions apply (R(Saleh) v SSHD [2013] EWCA Civ 1378).

• The burden of proof in a detention case is generally on the Defendant (R v Deputy Governor
• f Parkhurst Prison, Ex p Hague [1992] 1 AC 58, 162C-D per Lord Bridge of Harwich), but in

evaluating reasonableness the concept of a burden may be “inapt” (R(Saleh) v SSHD [2013] EWCA Civ 1378).

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Hardial Singh (i)

• Principle 1:

The Secretary of State must intend to deport the person and can only use the power to detain for that purpose.

• Detention cannot be used therefore for an alternative purpose such as e.g because of

public concern, or to force compliance.

• “For the purposes of removal” however is interpreted quite widely, and can include

e.g. detention for the purposes of an interview (R(Lucas) v SSHD [2018] EWCA Civ 2541) or for speedy consideration of an asylum claim (Saadi v SSHD [2002] 1 WLR 3131).

• When it becomes clear that a person cannot be removed at all then detention is not

for the purposes of removal and there is no power to detain.

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Hardial Singh (ii)

• Principle 2:

The deportee may only be detained for a period that is reasonable in all the circumstances.

• What is a “reasonable period”? At §§104-105 of R(Lumba) v SSHD [2011] 2 WLR 671 Lord Dyson (at

§104) approved his earlier account in R(I) v SSHD [2003] INLR 196 of the factors potentially bearing upon the reasonableness of detention: “It is not possible or desirable to produce an exhaustive list of all the circumstances that are, or may be, relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971. But in my view, they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal

• ffences”

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Hardial Singh (ii) – cont.

• Likelihood of offending will usually be important, but that will depend on the kind of offending

held in R(A) v SSHD [2007] EWCA Civ 804 (at §55): “A risk of offending if the person is not detained is an additional relevant factor, the strength

• f which would depend on the magnitude of the risk, by which I include both the likelihood of

it occurring and the potential gravity of the consequences.”

• Equally a risk of absconding is of critical importance, see e.g. Fardous v SSHD [2015] EWCA Civ

931 at §44 “It is self-evident that the risk of absconding is of critical and paramount importance in the assessment of the lawfulness of the detention. That is because if a person absconds it will defeat the primary purpose for which Parliament conferred the power to detain and for which the detention order was made in the particular case.”

• However neither is a “trump card” per Dyson LJ in Lumba at §128; Fardous at §46.

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Hardial Singh (ii) – cont.

• There are no “yardsticks” in terms of length of detention that will render it unlawful per se, and

looking at other cases may be of limited assistance (Fardous at §41): “Each deprivation of liberty pending deportation requires proper scrutiny of all the facts by the Secretary of State in accordance with the Hardial Singh principles. Those principles are the sole guidelines.”

• Nevertheless it is notable that the expert Tribunal considers (Presidential Guidance Note No 1 of

2018 Guidance on Immigration Bail for Judges of the First-tier Tribunal (IAC)): “It is generally accepted that detention for three months would be considered a substantial period and six months a long period. Imperative considerations of public safety may be necessary to justify detention in excess of six months.”

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Hardial Singh (iii)

• Principle 3:

If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention

• The same considerations in respect of Hardial Singh (ii) apply to this analysis of what is reasonable.

However the analysis is prospective, rather than retrospective (it “projects forward”).

• In Lumba, Dyson LJ said this (§103):

"103. A convenient starting point is to determine whether, and if so when, there is a realistic prospect that deportation will take place [...] [T]here may be situations where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a period that is reasonable in all the circumstances, having regard in particular to time that the person has already spent in detention… if there is no realistic prospect that deportation will take place within a reasonable time, then continued detention is unlawful."

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Hardial Singh (iii) – cont.

• In R(Ademiluyi) v SSHD [2017] EWHC 935 (Admin) DHCJ Fordham QC gave a detailed analysis of

Hardial Singh (iii). He described the key question as this (§62): “Viewed objectively and on the facts as they presented themselves to the Secretary of State at the relevant time, was there or was there not a realistic prospect of deportation during a time which in all the circumstances of this case would be a reasonable time? Was it sufficiently clear that no realistic prospect of that kind arose such that the Secretary of State should have released rather than detained?”

• It was no answer to a claim under Hardial Singh (iii) that detention was “just beginning”, save where

at that stage the prospect of removal was in some way unclear (§88).

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Hardial Singh (iii) – What to look for in practice…

• Impact of COVID- Impossible to remove to some countries- lots of people not removable-lots od

detainees released but often with long delays to find accommodation (see e.g. SML v SSHD, Merca v SSHD).

• What does the SSHD do in practice? Almost invariably will find that the SSHD has just asserted that

removal will take place within a reasonable time and ‘guessed’ at something that was not possible e.g. trafficking victim from a difficult country at the outset of the process. SSHD says: will be able to remove in 3 months. Very, very, very unlikely.

• Important to consider:
• Where was client in the immigration process? First decision, appeal, fresh claim, outstanding

appeal, appeal rights exhausted but not removable?

• Did they have a travel document? If not what were the barriers to removal?
• Were there any other barriers? Eg country had closed borders, medical issues etc

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Hardial Singh (iv)

• Principle 4:

The Secretary of State should act with reasonable diligence and expedition to effect removal.

• Diligence is relevant both to the Hardial Singh (ii) and (iii) assessment, as well as being a free-

standing principle. Lack of diligence in pursuing deportation will also render detention unlawful by reference to Article 5 ECHR (Mikolenko v Estonia [2009] ECHR 1471 (at §63)).

• Lack of diligence must go over the “dividing line between mere administrative failing and illegality”

for detention to be unlawful (Krasniqi) v SSHD [2011] EWCA Civ 1549 at §12; R(Saleh) v SSHD [2013] EWCA Civ 1378 at §66).

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Limitations on the power to detain: (2) Breach of a public law rule (Lumba)

• “There is in principle no difference between (i) a detention which is unlawful because there was

no statutory power to detain and (ii) a detention which is unlawful because the decision to detain, although authorised by statute, was made in breach of a rule of public law. For example, if the decision to detain is unreasonable in the Wednesbury sense, it is unlawful and a nullity.” Lumba v SSHD [2012] 1 AC 245 per Dyson LJ at §66

• Breach of a public law rule that bears on and is relevant to the decision to detain will render

detention unlawful without more (Lumba at §68).

• Breach of a public law rule includes breach of a material policy, or making a decision by reference

to an unlawful policy (Nadarajah v SSHD [2004] INLR 149; Lumba at §26).

• However, even where there is a material breach, damages will be nominal where the person “could

and would” have been detained in any event (Parker v Chief Constable of Essex Police [2019] 1 WLR 2238 at §104; Hemmati v SSHD [2019] UKSC 56 at §112).

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Lumba – cont.

• The most common Lumba errors in immigration detention cases are failures to follow published

policy.

• There are numerous policies that potentially bear on the decision to detain, but some of the key
• nes are (https://www.gov.uk/government/publications/offender-management):
• Detention and Temporary Release (formerly Ch 55 EIG)
• Adults at Risk Policy
• Detention of Pregnant Women
• The policies now provide some protection for a wide variety of vulnerable people including e.g.:
• Pregnant women;
• Possible minors;
• Torture victims;
• Potential trafficking victims;
• Those with mental health problems;
• Those with a disability;
• Those with serious health conditions.

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Health issues

• Rule 34- on entry medical examination (rule 21 of Prison Rules)
• Rule 35- medical reporting of conditions demonstrating potential or actual adult at risk of

harm- eg torture victim, mental and physical health damaged by detention, conditions that cannot be adequately treated in detention

• Access to treatment and appointments
• Very often policy is used to release the person after they have suffered harm in detention

rather than to prevent the harm occurring.

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Limitations on the power to detain: (3) Human Rights Act 1998

• The Human rights Act 1998 limits in certain circumstances the power to detain.
• The most common issues will arise under Article 5 ECHR, but detention may potentially breach

Article 3 ECHR (see e.g. HA(Nigeria) v SSHD [2012] EWHC 979 (Admin); R(ASK) v SSHD

• [2019] EWCA Civ 1239), Article 8 ECHR (see e.g. R(Abdollahi) v SSHD [2013] EWCA Civ 366).
• Article 5 ECHR places limits on the power to detain for the purposes of deportation, and provides

e.g. that there must be “some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention.” (Saadi v United Kingdom (2008) 47 EHRR 17 at §69). However see R(Idira) v SSHD [2016] WLR 1694 – conditions will only breach Article 5 ECHR where they are “seriously inappropriate” (§61).

• Note that a breach of the human rights of a person in detention that may not amount to a false

imprisonment unless the lawfulness of detention is itself vitiated by that breach (see R(Greenfield) v SSHD [2005] UKHL 14).

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Limitations on the power to detain: (4) EU law

• The European Communities Act 1972 places (for the moment) an obligation on the SSHD to

comply with European Union law, and so constrains the power to detain.

• That includes a requirement not to detain in breach of e.g. the Charter of Fundamental Rights, the

Citizens’ Directive, the Dublin III Regulation (R(Lauzikas) v SSHD [2019] EWCA Civ 1168; R(Hemmati) v SSHD [2019] UKSC 56).

• Hemmati [2019] 3 WLR 1156 decides that in all cases where a person was detained for the

purposes of Dublin III removal between 1 January 2014 and 15 March 2017 detention was unlawful and that person is entitled to substantial damages.

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Limitations on the power to detain: (5) Other statutory constraints

• As with policies, there are several other statutory limitations (apart from HRA 1998 and ECA

1972) on the power to detain that may be relevant such as e.g.:

• Prohibition on detaining minors (paragraph 18B of Schedule 2 to the 1971 Act – strict

liability, see R(Ali) v SSHD [2017] 1 WLR 2894)

• Limitation on detention of pregnant women (section 60, Immigration Act 2016)
• Equality Act 2010 (see e.g. R(ASK) v SSHD [2019] EWCA Civ 1239)
• Borders, Citizenship and Immigration Act 2009, s55 (R(Abdollahi) v SSHD [2013] EWCA

Civ 366)

27

PRACTICAL NOTES

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Practical Notes

• Legal aid or other funding?
• Have you made a Subject Access Request:
• UKVI
• Healthcare
• The prison/detention centre
• Do you need medical evidence?
• What was the date of detention?
• Is there a PI claim?
• What is the limitation period?
• Is the client at risk of removal?

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Practical notes

• Check the power to detain exists in your case. Note if asserting British- burden is on the

claimant to prove on the balance of probabilities Home Office v TR & JA [2019] EWHC 49

• Check the power was properly exercised
• Ensure client was properly served with the relevant underlying decisions e.g. deportation

notice

• Ensure client was properly served with the detention paperwork e.g. the IS91 R giving the

reasons for detention. These must be ‘true’ reasons i.e. the SSHD cannot give generic reasons

• r tick all the tick boxes rather than providing a specific reason R(HS) v SSHD [2019] EWHC

2070 (Admin)

• Ensure client was provided with detention reviews as required
• Check entry to detention procedure properly followed

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Practical Notes

• Have you seen the IS 91 and IS91R?
• Have you seen the detention reviews and monthly progress reports? (These should have been

given to the client)

• Have you seen the detention minutes? (These are not given to the client but will be in the SAR

documents)

• Are there any discrepancies between the detention reviews and the detention minutes?
• Was a Rule 34/35 conducted and if so what does it say?
• Who is the Defendant?
• Does the client need additional immigration, trafficking or welfare law advice?

31

REMEDIES AND QUANTUM

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Consequences of unlawful detention: Relief and quantum

• Where a person is detained unlawfully they will be entitled to an order for release.

Important to consider whether it would be better to pursue a Habeas Corpus case (where there is no power to detain).

• Where a person is detained unlawfully they will be entitled to damages for the tort of false

imprisonment and/or for breach of Article 5 ECHR.

• Damages are calculated by reference to Thompson & Hsu v The Commissioner of Police for

the Metropolis [1998] QB 498. The figure in Thompson was £500 for the first hour and £3,000 for the first day (roughly £1,000 and £6,000 adjusted for inflation plus Simmons v Castle [2012] EWCA Civ 1288 uplift).

• Where a person chooses detention over lawful removal that can affect the rate of damages

R(NAB) v SSHD [2011] EWHC 1191 (Admin).

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Potential heads of damage

• Loss of liberty, basic, aggravated, exemplary damages
• Human Rights Act ‘just satisfaction’
• Breaches of the Equality Act 2010
• Personal injury
• Special damage – loss of earnings, financial loss
• Breaches of EU law
• Other torts – assault, wrongful conversion of goods, negligence, misfeasance

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Human Rights Act 1998 damages

Commissioner of the Metropolis v DSD and another [2019] AC 196 sets out the key principles in respect of compensation for breaches of Convention rights (§§66-68):

• Compensation is not automatically payable for breaches of Convention rights,

Strasbourg frequently treats the finding of a breach itself as just satisfaction for the purposes of Article 41 (see also R(Greenfield) v SSHD [2005] 1 WLR 673);

• An award of compensation for breach of a Convention right serves a different purpose

from an order for the payment of damages in a civil action (see also Van Colle v Chief Constable of Hertfordshire [2009] 1 AC 225) – not to compensate per se but to uphold minimum human rights standards and vindicate those rights;

• Damages will only be awarded insofar as necessary for “just satisfaction”
• Keep an eye out for e.g. breaches of Article 3 ECHR/Article 8 ECHR

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Human Rights Act 1998 damages – not an “add-on”

R(Nazem Fayed) v SSHD [2018] EWCA Civ 54 - Per Singh LJ

• When in a judicial review claim another head of damages is raised (e.g.

negligence, breach of a statutory duty) it “should be properly pleaded and particularised” (§48)

• And in respect of HRA claims (§54):

“In particular claims for judicial review which include a claim for damages for breach of the HRA should be properly pleaded and

• particularised. They should set out, at least in brief, "the principles applied

by the European Court of Human Rights" under Article 41 of the Convention [on just satisfaction] which are said to be relevant.”

• However HRA claims “as an afterthought and frequently as a makeweight”

and not properly pleaded may lead to adverse costs orders.

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Recent authorities on damages - Rees

Rees v Commissioner of Police for the Metropolis [2019] EWHC 2120 (Admin)

• A senior police officer had deliberately manipulated the evidence of a witness

ultimately excluded leading to the collapse of a trial after substantial imprisonment on remand

• Two Claimants sought (i) £50-60k for malicious prosecution; (ii) £100-150k for

false imprisonment and aggravated damages of £80-100k

• Third Claimant sought (i) £200k for malicious prosecution and brief false

imprisonment and (ii) aggravated damages of £50k

• All three Claimants sought exemplary damages: the first two Claimant sought

£70-£100k; the third Claimant sought £90k

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Recent authorities on damages – Rees (cont.)

• Two Claimants were detained 682 days (5 months in Cat A, including bail conditions),

3rd Claimant was detained only 9 days, restrictive bail conditions on release (no initial shock as the initial detentions were lawful)

• Court accepted immigration detention involved a greater degree of distress than

detention in prison (§28) – so immigration cases were not “ideal comparators”

• Court took into account the Judicial College guidance on moderately severe PTSD to

“cross-check” with the award (applying Thompson) which was £20-50k

• Lack of apology was not usually relevant to the award of aggravated damages, though

the presence of one might have mitigated hurt feelings (§40)

• Exemplary damages were awarded and split equally between the Claimants
• Aggravated damages: reduced because of antecedent history (partly)

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Recent authorities on damages – Rees (cont.)

Claimants 1 and 2 were awarded £155k each:

• Basic award: (i) Distress etc from the charge £27k; (ii) Loss of liberty £60k
• Aggravated damages £18k
• Exemplary damages £50k (1/3 of £150k)

Claimant 3 was awarded £104k

• Basic award: (i) Distress etc from the charge £27k; (ii) Loss of liberty £9k
• Aggravated damages £18k
• Exemplary damages £50k (1/3 of £150k)

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Recent authorities on damages – Lauzikas

R(Lauzikas) v SSHD [2019] EWCA Civ 1168

• Decision on the lawfulness of the detention of an EU migrant by DHCJ

Fordham QC dealing with the appropriate counterfactual in a Lumba case

• DHCJ Fordham QC had held that in deciding whether a person could and

would have been detained, the Court could not decide that question by reference to material that was not before the Secretary of State (§64)

• The Court of Appeal disagreed (§33) and held that the Judge had conflated

liability and damages (§33) – the focus should be on the Claimant and not the Defendant – has the Claimant actually suffered as a result of the public law error?

• So the question is “what would the SSHD have done if she had gathered the

correct information at the right time” (§34)

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Recent authorities on damages – Holownia

Holownia v SSHD [2019] EWHC 794 (Admin)

• Rough sleeper case where the Claimant was detained unlawfully for 153 days (liability

accepted following Gureckis and Ors [2017] EWHC 3928 (Admin))

• Further complaints from the Court on pleading:
• Psychiatric/psychological injury had not been separately pleaded and though this

was not a breach of Part 54 it “could and should” have been (§3) (see also Singh LJ in Fazed)

• Also a breach of Part 35 CPR - Claimant did not have permission to rely on his

report and so a further hearing in relation to psychiatric injury was necessary (and there will presumably be a further judgment)

• No witness statement had been filed on the Claimant’s behalf which undermined

his arguments for aggravated damages in respect of certain aspects of his treatment

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Recent authorities on damages – Holownia (cont)

• Robust defence of litigation was not a basis for an award of aggravated damages

(§69) – see similar comments in Rees

• Awarded £32k basic damages including for significant initial shock (initial

shock assessed as £6,000 applying Thompson)

• Awarded £5k for “the hunger-strike element” – whether to be included as part
• f basic or considered as aggravated
• Total of £37k
• No award of exemplary damages - there should not generally be awards of

exemplary damages in cases involving multiple victims as unless they are all quantified at the same time the punitive effect cannot be properly “calibrated” (§77)

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Recent authorities on damages – Adegboyega

Adegboyega v SSHD [2019] EWHC 810

• SSHD had conceded unlawful detention of 88 days and the matter was

transferred to the Queen’s Bench Division for an assessment of damages.

• The Claimant intended to claim for PI, false imprisonment, breach of EU rights,

trespass, breach of Articles 3 and 8 ECHR and sought exemplary damages.

• The Master considered that these claims were not those before the Admin Court

– they were public law issues that should not have been transferred (e.g. because a declaration was sought), and that it was abusive to be litigating matters that were also before the FTT (the Claimant’s EU rights).

• The Master considered that the only matter transferred was the quantum

decision in respect of false imprisonment and struck out the claim as an abuse

• f process.

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Recent authorities on damages – Adegboyega (cont.)

• In the High Court, the SSHD argued that if the Claimant wanted to pursue new issues in

respect of liability he should have resisted the transfer to the QBD.

• Spencer J allowed the appeal:
• Although the Claimant had “opportunistically” pleaded claims that had not been

signposted before, particularly the Article 3/trespass, in general his claims reflected the particulars.

• If the Master felt that certain issues were not appropriate to plead without permission
• r at all he should have made that clear so the Claimant could seek permission to either

pursue them or transfer back to the Admin Court.

• Striking out the claim had been “extreme” – strike out should be a course of last resort

where orders (including ‘unless orders’) have failed.

• The Claimant was granted permission to rely on all matters including under Article 3

ECHR and trespass to the person.

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Recent authorities on damages – Majewski

Majewski v SSHD [2019] EWHC 473 (Admin)

• Another rough sleepers’ case (following Gureckis)
• Claimant sought £28k in damages
• Claimant was awarded £14,800 for 38 days’ unlawful detention (including £6,400 for

initial shock)

• Claimant had been very distressed and his relationship with his children had been

disrupted (though that relationship was “tenuous”)

• Claimant was also very anxious about his possible removal
• However no basis for aggravated damages (lack of apology could reduce hurt to feelings in

certain cases, but the absence could not increase that hurt)

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Recent authorities on damages – Diop

R(Diop) v SSHD [2018] EWHC 3420 (Admin)

• Claimant was an FNO who was unlawfully detained for 28 days. The Defendant

had failed to comply with an order of the FTT to provide suitable bail accommodation – awarded £9,000 (applying R(Lamari) v SSHD [2013] EWHC 3130 (QB)).

• No initial shock, but the Claimant became increasingly frustrated about when he

would be released and be able to see his children. He was entitled to compensation for the anger he felt when he learned of the SSHD’s inactivity.

• SSHD’s failure to make an effort to comply with the FTT’s Order was an

inexcusable failure to take it seriously and recognise her obligations and warranted an award of aggravated damages (both basic and aggravated were rolled into the global £9k awarded).

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Recent authorities on damages – Diop (cont.)

• Claims for damages and defences need to be properly particularised in advance of

remedies hearings (§2).

• Drawing a distinction between any injury to the Claimant's feelings caused by the

wrong itself (reflected in basic damages) and any such injury caused by the manner in which it was committed (reflected in aggravated damages) was inevitably arbitrary: the injury to his feelings would be the product of both. Better to make an award of a global figure (§44). Otherwise there was a risk of double counting and/or artificially creating an elevated threshold before injury to feelings “counts” to be reflected in damages.

• The Court rejected the SSHD’s suggestion that the Claimant bore some responsibility

for the loss because the Law Reform (Contributory Negligence) Act 1945 did not apply to intentional torts. The Court also rejected NAB damages.

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Recent authorities on damages – KG

R(KG) v SSHD [2018] EWHC 3665 (Admin)

• Claimant was detained unlawfully for 30 days in an Immigration Removal

Centre

• If he had been given a Rule 34 examination earlier he would not have been

detained

• Claimant was awarded £19,500 (£17,500 basic and £2,000 aggravated)
• There was no initial shock, but he was a fragile individual who suffered from

mental health problems

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Equality Act damages ‘injury to feelings’

• In Vento v Chief Constable of West Yorkshire Police (No 2) [2003] ICR 318 the

court broadly identified three bands of compensation for injury to feelings (as distinct from compensation for psychiatric or similar personal injury).

• The case provides some guidance as to deciding what ‘band’ a particular case

would come within - but nb update figures for inflation.

• The Court held that there is considerable flexibility within each band allowing

courts to fix a fair, reasonable and just figure in all the circumstances of the case.

Thank you

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