QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| MR A HOLOWNIA
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Ms J Anderson (instructed by Government Legal Department) for the Defendant
Hearing dates: 27 February 2019
Crown Copyright ©
MRS JUSTICE SIMLER DBE:
Procedural history and facts relating to the Claimant's detention
"He has been in the UK for five years and states he is not working. His close ties are to his native country where the rest of his family reside. He has no known assets in the UK that could hinder any barrier to his removal. He has no fixed address in the UK."
"day two food/fluid refuser as he has not eaten an IRC issued meal since the 13 June (excluding breakfast) he will remain on FFR until he eats two consecutive meals. He has advised the service provider he is protesting against the Home Office. Healthcare monitor daily and currently have no concerns..".
"No current concerns have been expressed by Brook House IRC that his condition cannot be managed in detention, and his medical issues are being satisfactorily managed in the IRC. Case owner to monitor case closely with IRC, should there be any further developments or arising concerns that the applicant is no longer suitable for detention. The presumption in favour of the detainee's release has been considered as well as the grounds for maintaining his detention. Having considered these reasons, the proposal to maintain detention outweighs the presumption to release him. His detention remains necessary for removal arrangements to proceed. RDs have been set for 7 August 2017 ".
"101. During the extended period, an EU citizen must qualify under one of a number of categories. In the test cases, the qualification claimed was that the Claimants were workers or were seeking work, and the policy envisages that many rough sleepers are residing in the UK to obtain work. The term "worker" in regulation 4 of the 2016 Regulations is defined by reference to Article 45 TFEU. It has been broadly defined in the case-law. In Case 53/81 D.M. Levin v Secretary of State for Justice, the CJEU held that it included "the pursuit of effective and genuine activities, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary" (at ). This test has been widely applied.
102. The relevant question was whether, by rough sleeping, they were engaging in an activity which artificially created the conditions required to satisfy the requirements in the Regulations. In my judgment, the answer was "no". Rough sleeping was incapable of amounting to an artificial means of satisfying the requirement to be a worker or job seeker because it was not an economic activity and it could not generate the conditions required to establish economic activity.
103. Moreover, where it was accepted that an EEA national was a "worker", by definition he was engaging in "genuine" activities, and it would be inconsistent and illogical to find that he had at the same time artificially satisfied the condition of being a worker by rough sleeping.
104. As the Claimants correctly pointed out, Mr Eadie QC misstated the second limb of the test in paragraph 20(b) of his skeleton argument and in oral submissions by submitting that it was met where there was no intention to fulfil the purpose of the free movement right by integrating, economically and socially, into the host State. This confused the first and second limbs of the test.
105. It followed that the second limb of the test was not met because the rough sleepers could not be said to be engaging in an activity which artificially created the conditions required to satisfy the requirements in the Regulations. It made no difference whether the Defendant's policy was to treat rough sleeping ipso facto as an abuse of rights, or only to treat intentional, harmful rough sleeping as an abuse.
106. For these reasons, the Claimants succeed on ground 1. The policy was unlawful because to treat rough sleeping as an abuse of the right to freedom of movement and residence was contrary to EU law."
"the Defendant could not justify its less favourable treatment of EEA rough sleepers on the grounds that they were suspected of abusing their rights to freedom of movement and residence, in breach of the 2016 Regulations. The justification upon which the Defendant relied was unlawful."
"121. The Defendant relied on the reasoning in Commission v UK and the Aire Centre case, the evidence showed that the initial questioning only occurred because, under the terms of the policy, EEA nationals who were rough sleeping were presumed to be abusing their EEA rights of residence by sleeping rough. That was the reason why EEA nationals who were sleeping rough were targeted on the streets by police and immigration officers. Operations Adoze and Gopick were large scale comprehensive operations undertaken for these purposes. In my judgment, the Claimants were correct in their contention that this was a blanket policy of verification, which was systematic and therefore unlawful. Therefore the Claimants succeed on ground 3.
Legal principles applicable to the assessment of compensation in unlawful detention cases
Basic and aggravated damages
(a) the manner in which the unlawful detention was committed: in other words, where the unlawful detention occurs or is handled in an exceptionally distressing, humiliating or insulting way that seriously increases the claimant's distress;
(b) the motive for unlawfully detaining the claimant: where the motive for unlawful detention is based on malice, personal animosity, prejudice or is intended to harm and the claimant's knowledge (whether gained at the time or after the unlawful detention has come to an end) of this motive causes increased distress;
(c) conduct during or subsequent to the unlawful detention but that is directly relevant to it: this covers conduct that can be seen as "rubbing salt in the wound". It can cover acts other than the tort in question. For example, where a defendant has conducted subsequent litigation in an unnecessarily offensive, oppressive or intimidating manner. A failure to apologise might fall into this category but whether it is a significantly aggravating feature will inevitably depend upon the particular circumstances of the case. A difficulty recognised in Shaw is the risk that compensation might be awarded for subsequent conduct under this category that has not been examined in evidence or properly proved (see paragraph 22(c) Underhill P.)
" the ultimate question is "what additional distress was caused to this particular claimant, in the particular circumstances of this case, by aggravating feature(s) in question?", even if in practice the approach to fixing compensation for that distress has to be to some extent "arbitrary or conventional".
(a) cases of oppressive, arbitrary or unconstitutional action by the servants of the government.
(b) Cases in which the defendant's conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the claimant. This category is not confined to financial profit in the strict sense but extends to cases where the defendant is seeking to gain at the expense of the claimant some object. Exemplary damages can be awarded where it is necessary to teach a wrongdoer that tort does not pay.
(c) Cases in which exemplary damages are expressly authorised by statue.
In other words, exemplary damages are punitive and not compensatory, and payable to the victim where the tortious conduct involves a gross misuse of power or "outrageous" conduct that calls for "exemplary damages to mark disapproval, to deter and to vindicate the strength of the law" (see Muuse v SSHD  EWCA Civ 453 (Thomas LJ at  and )).
"(13) Where exemplary damages are appropriate they are unlikely to be less than £5000. Otherwise the case is probably not one which justifies an award of exemplary damages at all. In this class of action the conduct must be particularly deserving of condemnation for an award of as much as £25,000 to be justified and the figure of £50,000 should be regarded as the absolute maximum, involving directly officers of at least the rank of superintendent."
Up-rated for inflation those figures are £10,000, £50,000 and £100,00.
Application of these principles to the facts of this case
Basic and aggravated damages award