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Legal case

Unlawful detention: significant damages awarded in legal case

Guidance on dealing with unlawful detention and human rights breaches.

Ibukun Adebowale Adegboyega v the Secretary of State for the Home Department

High Court awards damages of £203,995 with £35,000 for basic compensatory damages for a claimant who suffered 88 days in unlawful detention where they suffered ‘an arbitrary exercise of executive power which was outrageous’

Background

The claimant, a Nigerian national, met his wife, an EEA national, whilst he was studying in Cyprus, and they later married in June 2014. The claimant entered Romania on a five-day transit visa in August of 2014 where he was granted a six-month EEA family permit until 19 November 2015. Alongside his wife, the claimant then entered the UK with this permit and applied for an EEA residence card. The defendant responded on 3 September 2015 to say that satisfactory evidence of his relationship with an EEA citizen had not been provided, therefore the claimant was not permitted to work in the UK.

As the defendant had denied the claimant’s application, they went on to inform prospective employers that the claimant did not have right to work in the UK during 2015 and 2016 and later served notices that the claimant was an ‘overstayer’. The defendant notified the claimant of his removal window on 2 September 2016, and required him to report to an immigration official on 30 September 2016.

The claimant proceeded to instruct solicitors, providing the defendant with the requested documentation in November 2016. These included the spouse’s ID, a letter from the spouse confirming she was in ongoing employment, as well as a copy of their marriage certificate. Despite their records confirming relationship evidence had been submitted on 29 November 2016, the defendant determined that the claimant had not secured the right to remain under EEA regulations in February 2017, leading to a fresh removal window notice being served on the claimant in April. Despite this notice never being received by the claimant, he was detained after reporting to the defendant on 28 April 2017, with intention to remove him from the UK in due course. The defendant was unlawfully detained at Brook House until 24 July 2017.

The claimant brought a claim for damages for unlawful detention, trespass to the person, psychiatric injury and breaches of Article 3 and 9 of the ECHR, Direction 2004/38/EC rights and the Immigration (European Economic Area) Regulations 2006 (‘the 2006 Regs.’).

Findings

HHJ Roberts found that the defendant had sufficient information to establish that the claimant had an EEA national spouse who was working in the UK and that the claimant was unlawfully detained.

The court made a basic compensatory award of £35,000 in damages. Notably, awards for damages taper off as the period of detention gets longer. However, HHJ Roberts commented on this particular area, deciding that this shouldn’t be the case here as ‘the claimant’s psychological injury and distress remained the same throughout his detention’ with the conditions, treatment and experience remaining the same throughout his unlawful detention.

The judge also awarded a further £15,000 in aggravated damages and £25,000 for exemplary damages, citing the defendant’s conduct in the 2017 bail application before Judge Baker, where the defendant made representations which were untrue and misleading.

The court awarded £26,000 for breach of Article 3 of the ECHR, and £5000 and £4000 for psychiatric injury and CBT treatment. However, despite finding that Article 8 was engaged, the High Court did not make an award for it as to ‘avoid double counting’.

An award of £250 was made for trespass to the person, and £38,955 was awarded for loss of earnings and £30,000 exemplary damages, following the defendant conceding to breaching the 2006 Regs. The defendant conceded that the claimant was entitled to substantive damages for breach of the 2006 Regs.

Comment

Incorporating the Brook House Inquiry, this judgement provides significant quantum guidance for unlawful detention and human rights breaches involving immigration detention.

This is a particularly serious case which will undoubtedly catch the eye of claimant firms. It will be interesting to see how claimant firms utilise this judgment, but it is anticipated that it will be widely relied on when calculating unlawful detention awards.