High Court awards Claimant £88,500 in damages for unlawful detention and breach of EU law rights

On 29 April 2024, HHJ Bloom handed down judgment finding that the Home Office unlawfully detained our client for 14 days and breached her EU law rights over a period of just under 4 years. The award included findings of aggravated and exemplary damages and was at the end of a three-day trial at the County Court at Central London.

Background facts of this case:

On 6 November 2019, the Claimant arrived in the UK at Birmingham International Airport with an EEA Family Permit. She was travelling with her father, who was the sponsoring Union citizen for her EEA family permit. The Claimant’s half-brother was also travelling with them. Upon arrival in the UK, the Claimant was detained by Border Force officers. Her arrival was shortly after the Border Force had been alerted to a high number of counterfeit birth certificates being issued to get EU family permits. The Claimant’s birth certificate was subsequently examined by an immigration officer, and the Claimant was interviewed at the airport. On the same day, she was issued with a decision refusing her admission to the UK under the Immigration (EEA) Regulations 2016 and informed that she would be deported back to Ghana on 7 November 2019.

The basis of the decision was that the birth certificate presented by the Claimant had been assessed as having been obtained fraudulently, and that the Defendant was therefore not satisfied that the Claimant was related to her sponsor as claimed. The decision further stated that the Claimant was not entitled to appeal until she had left the UK.

The Claimant was separated from her half-brother, who was referred to social services due to his age. The Claimant was then taken to Yarl’s Wood, an immigration detention centre. Upon being informed of the above decisions, and having been taken to Yarl’s Wood, the Claimant made an asylum claim. It does not appear that any assessment was undertaken prior to her transfer to the detention centre as to whether she was a vulnerable adult due to her asylum claim.

Upon arrival at Yarl’s Wood, there was no proper medical examination of the Claimant pursuant to Rule 34 of The Detention Centre Rules. On 13 November 2019, the Claimant met with a medical practitioner at Yarl’s Wood and a Rule 35 investigation was conducted, which concluded that the Claimant’s injuries and psychological state were consistent with the history given by the Claimant that she had been tortured. The next day, the Defendant advised the Claimant that there were reasonable grounds to conclude the Claimant was a victim of modern slavery. The Defendant further accepted that the findings and observations of the medical practitioner met level 2 of her Adult at Risk in Immigration Detention Policy and the Claimant was to be regarded as an adult at risk.

On 19 November 2019, the Claimant was granted immigration bail and released from detention with conditions attached. The conditions included a prohibition on working, and a requirement to report to an immigration reporting centre. It is also worth noting that the Claimant was released to the address of her father.

On 19 November 2020, the Claimant submitted a Judicial Review claim. The public law element of the Judicial Review proceedings was settled, and the private law claims for damages were transferred to the County Court at Central London.

On 15 December 2020, the Defendant reconsidered the decision to refuse admission to the Claimant. The Defendant revoked the family permit and refused admission under Regulation 24(5)(a) of the 2016 Regulations.

The Claimant appealed against the decision. The appeal was initially dismissed by the First- tier Tribunal (IAC) based on the evidence from the Defendant that the Ghanaian Births and Deaths Registry had assessed the birth certificate as fraudulent. The Claimant appealed against that decision, and the Upper Tribunal (IAC) ultimately allowed the appeal, finding that the Defendant had not established that the birth certificate was fraudulent on the totality of the evidence. The Judge concluded that the Claimant was no longer a family member as defined by Regulation 7, but an extended family member and the appeal was allowed on that limited basis. The Defendant did not appeal against the Upper Tribunal’s decision.

The Defendant subsequently granted the Claimant leave to remain under the European Union Settlement Scheme and issued her with a Biometric Residence Permit reflecting that decision. She was also granted permission to work in August 2023. The Claimant gave birth to her daughter on 7 May 2023, and started part-time work on 6 November 2023.

The legal framework: 

The Claimant’s claim for damages for false imprisonment in 2019 for the 14 days that she was detained at Yarl’s Wood Immigration Detention Centre were admitted by the Defendant. However, the Defendant did not admit liability for aggravated and exemplary damages.

Further, the Claimant’s claim for damages for breach of EU law rights was admitted by the Defendant with respect to the failure to properly notify the Claimant of her appeal rights in the 6 November 2019 decision. This admission related to the period until 15 December 2020 when the Claimant was served with a decision that did properly notify her of her appeal rights. The Defendant denied that the Claimant is entitled to damages for this breach of EU law beyond the basic compensatory damages she is entitled to for false imprisonment. The Defendant denied that the Claimant is entitled to exemplary or aggravated damages.

The reporting requirements were put as part of the breach of EU rights rather than false imprisonment and it was accepted that depending how HHJ Bloom dealt with aggravated damages there was likely to be no separate claim for breach of the Claimant’s Article 8 rights.

Key points in relation to damages:

In relation to damages for false imprisonment, HHJ Bloom considered the leading cases of Thompson v MPC [1997] EWCA Civ 3083 and MK(Algeria) v SSHD [2010]EWCA Civ 980. HHJ Bloom also considered the case of Muuse v SSHD [2010] EWCA Civ 453, where the Court of Appeal discussed the principles that applied in relation to exemplary damages. In Muuse, the Court of Appeal made clear that exemplary damages were justified to mark the actions of junior officers as well as the system that allowed it to happen.

Additionally, HHJ Bloom considered the case of R (Deptka) v SSHD [2019] EWHC 503 (Admin) where there was an agreement to pay the Claimant £1000 for reporting restrictions in breach of EU law rights. As regards to damages for unlawful detention, Soole J considered various aggravating features namely, the separation of the Claimants for four weeks from each other, the delay in admitting liability, the delay in apologising and the initial refusal to make interim payments.

The Judge considered R (Sapkota) v SSHD [2017] EWHC 2857, where the Claimant was awarded damages for 36 days period of unlawful detention in the sum of £11,000 for the first 24 hours and a further £12,000 for the remaining period. In R (Supawan) v SSHD [2014]EWHC 3324, Blake J awarded the sum of £9,000 for 15 days of detention.

Further, HHJ Bloom was referred to E v Home office 2010, where there was an award for psychiatric injury. An aggravating feature was held to be the failure to properly examine the Claimant under Rule 34. The failure was seen to be a continuing factor in the unlawful detention and an aggravating feature as was the approach taken by Home Office to the litigation.

As to damages of breach of EU rights, it was agreed by both parties that the Claimant is entitled to Francovich damages for the breaches of her EU law rights. Further, the parties referred HHJ Bloom to the case of R (Santos) v SSHD [2016] EWHC 609. There were some similarities in that there was a 4-year delay in granting Mr Santos his residence card despite him being eligible for the same due to his marriage to an EEA citizen. However, Mr Santos was detained for 154 days, and there was also no suggestion of any fraud or forgery in his case.

In relation to unlawful detention compensation damages, HHJ Bloom considered the Claimant’s vulnerability – she was a young adult (18 years old) on her first visit to the UK (also her first flight abroad) when she was detained and told that she was going to be deported, it was clear that the initial detention was a huge shock for the Claimant. Further, HHJ Bloom took into account that the Claimant was handcuffed and escorted across the airport to a van and taken a detention centre. Importantly, HHJ Bloom considered that aggravated damages were due for several reasons. Firstly, the Claimant was separated from her father and half-brother who was young. Secondly, the use of handcuffs was an aggravating feature. Thirdly, the Claimant did make her asylum claim where she had to provide an account of her past suffering, causing her further emotional trauma.

Moving on to the issue of exemplary damages in respect of the unlawful detention, HHJ Bloom was satisfied that there was not a medical assessment within 24 hours as had there been an assessment, the Claimant would have told the GP about her asylum claim and the matters that are set out in the Rule 35 response would have come to light. HHJ Bloom was satisfied that had the proper procedure been followed, the Claimant would have been released within 48 hours. Furthermore, HHJ Bloom was concerned that there was no explanation as to why the Claimant was not given an in country right of appeal. The judge stated the following:

“The issue for me is whether the acts of the Defendant are such that they were not merely unconstitutional but also are an arbitrary exercise of executive power which was outrageous and calls for exemplary damages by way of punishment to deter and to vindicate the strength of the law.”

In relation to EU compensation damages, for reporting restrictions imposed on the Claimant  and her loss of earnings, HHJ Bloom was satisfied that the Claimant has suffered some lost income due to the fact that the Defendant did not permit her to work until August 2023 when she was in fact able to work from the date of her arrival in November 2019. In relation to this aspect of exemplary damages, HHJ Bloom stated:

“…there were a number of failures by the Defendant which do give rise to exemplary damages as the failures were outrageous, oppressive and unconstitutional.”

 HHJ Bloom was clearly critical of the actions of the Defendant, further stating:

“ … there was a continued inability of the officers to understand what the actual issue was in this case…a total misunderstanding of the legal issues bordering on a disregard for the law.”

 The consequence of the Defendant’s actions was that the Claimant did not have the right to work or claim benefits or move freely for four years.

Conclusion:

The Claimant suffered 14 days of false imprisonment and denial of EU law rights for just under four years. The unexplained and prolonged failures by the Defendant had a profound impact on the Claimant’s freedom of movement and right to work and cannot be excused by simply stating that the Claimant’s birth certificate appeared to be fraudulent. The mistakes made by the Defendant could have been avoided had it properly followed the legislation and the well-established policies that apply.

The Claimant was subsequently awarded damages as follows: in relation to Unlawful Detention, she was awarded basic damages of £20,000, aggravated damages of £7,500 and exemplary damages of £7,000. In relation to breach of EU law rights, the Claimant was awarded basic damages of £1,000 plus £36,000 and exemplary damages of £17,000. The Claimant’s total award is £88,500.

Advice and representation:

If you believe that you have been unlawfully detained, our experienced barristers are able to assist.

Our barristers have many years of experience and expertise with such claims. We have successfully represented numerous clients, recovering in excess of £700,000 in damages for our clients.