England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		21 October 2015

HH Judge Anthony Thornton QC:

Introduction

1. The claimant, Zia Ul Haque Tarakhil claims damages for false imprisonment and wrongful detention and for the psychiatric consequences of that detention and aggravated damages for the high handed way that he was detained and in which his claim has been dealt with throughout by the defendant. He is an Afghan national who was detained in Immigration Detention at Dover Immigration Centre between 19 January 2012 and 9 February 2012, a total of 21 days. The defendant is the Home Office which is the Government Department responsible for the conduct of Immigration Officers and others working for it in the United Kingdom Border Agency ("UKBA") and any third party contractor undertaking immigration functions involving the claimant. In summary, the claimant contends that his detention was unlawful because there were no lawful and reasonable grounds for detaining him.

Factual background

2. The lawfulness of the decisions taken in connection with the claimant's detention must be tested by reference to what was known to or should have been known by each decision-maker. The following summary only refers to such objectively known facts.
3. The claimant arrived in the United Kingdom on 19 May 2008 as an unaccompanied minor, was apprehended on arrival and immediately claimed asylum and that he was 13. He was age assessed by Kent County Council as being 15. The defendant refused his asylum claim because it refused to recognise him as a refugee but granted him discretionary leave to remain until 1 July 2010 when he would be 17½. He initially lived in Folkestone with foster parents but after nine months moved to an immigration hostel there to make room for others in greater need of fostering.
4. On 12 June 2010, he made an in-time application for an extension of his discretionary leave to remain through Refugee and Migrant Justice who where his legal representatives. That application had not been determined when, on 14 January 2011, he witnessed the homicide of someone who he knew who had died during an affray in his hostel that he was not involved in between two groups of Afghan young men. Soon afterwards, on 19 February 2011, his application for an extension of his discretionary leave to remain was refused which took effect on 19 March 2011. No notice of appeal was lodged against that refusal because the claimant had neither the knowledge nor the resources to obtain alternative representation or to represent himself as a result of Refugee and Migrant Justice's previous closure due to its financial difficulties. He therefore became appeal rights exhausted and his leave to remain expired on 31 March 2011.
5. The defendant's CID Calendar of Events contained a note dated 5 April 2011 that was booked by the Kent Local Immigration Team ("KLIT") which stated that the claimant could not be detained until "HMI/Kent Police" gave the go-ahead because he was subject to Operation Barnham as a witness to a murder incident. He was in fact to be a significant witness in the trial of the man who was to be tried for the death of his friend that he had witnessed. The defendant did not give any evidence about Operation Barnham but it was clear from other evidence that it was concerned with immigrants who were subject to removal from the United Kingdom but whose continued presence was needed in the United Kingdom to assist Kent Police in the investigation and prosecution of serious crime. As a result, agreement had been reached between the KLIT and Kent Police that such immigrants would neither be detained nor deported until their assistance was no longer required by Kent Police. As a result, KLIT gave such immigrants temporary admission or a 6-month period of discretionary leave to remain and required them to report regularly to an Immigration Reporting Centre. The agreement apparently provided that these restrictions on detention and removal were to remain in place until Kent Police no longer required the relevant immigrants' assistance and gave KLIT the go-ahead for their detention and removal.
6. On 19 April 2011, KLIT recorded in an internal note on the GCID Case Record Sheet that the claimant's further application for leave to remain had been refused and that he was appeal rights exhausted. AO Lingwood-Evans placed a note on the claimant's file which read in part:

"The [claimant] was granted DL until 01.07.2010 which has now expired. His FLTR app was received on 12.06.2010 was refused on 18.03.2011. He has no appeals o/s and the deadline has passed. The above was referred to HEO [redacted][a member of the KCT] who authorised service of form IS151A [Notice to a Person Liable to Removal] as the subject is an overstayer, committing an offence …

The [claimant] is also on the Op Barnham list as a significant witness to murder so should not be detained until checks made with HMI & Kent Police. However EO [redacted] has confirmed we should still set him up to report.

…

ACTION:

…

7. 04.2011 Did [the claimant] report? [The claimant] is murder witness (Op Barnham) so cannot be detained until given go ahead by HMI/Kent Police. File AFG Hold 1^st Report."
8. It was decided by the HEO at KCT that he should be served with a notice of being liable to be removed even though he could not be detained or removed at that time since he was subject to Operation Barnham. The notice stated that he had overstayed his leave and had in consequence committed an offence and that he was liable to be detained. None of these statements were accurate since he was subject to Operation Barnham, had only become appeal rights exhausted 16 days earlier and, in separate documents also dated 19 April 2011, was simultaneously granted temporary admission and made subject to a regular reporting requirement at Kent Reporting Centre. That HEO did not give evidence and the defendant did not disclose any contemporaneous note that that officer had made that explained why he had authorised the service of this notice despite the claimant's witness involvement in Operation Barnham as a significant prosecution witness in a murder trial.
9. On 20 July 2011, the claimant's new solicitors sent the defendant a fresh claim supported by further representations. These were based on contentions that the claimant was two years younger than he had been assessed as being by Kent County Council, that he would be persecuted on his return and that his removal would disproportionately interfere with his private and family life. Each of these contentions was supported by what was contended to be fresh evidence. These representations were initially forwarded to the KLIT who arranged for Kent Barrier Casework Team ("KCT") to determine them. On 4 October 2011, KLIT noted on the GCID Case Record Sheet that the claimant's representations were currently with KCT for consideration and that he was a witness in a murder case within Operation Barnham.
10. KCT refused these representations in a decision dated 18 October 2011. However, as is clear from the file note made by the Immigration Officer making the decision, the claimant was granted a right of appeal because that officer considered that there was fresh evidence that was unavailable at the time of his appeal which supported his contention that he was two years younger than had been concluded by those conducting his age assessment after his arrival and because he was subject to Operation Barnham as a live witness in a murder trial. He was granted this right of appeal because the determining officer considered that in the light of the fresh evidence, the claimant's appeal had a realistic prospect of success.
11. Meanwhile, the claimant gave extensive evidence for the prosecution at the criminal trial of the alleged killer of his friend at Maidstone Crown Court for about four days during October 2011. The jury accepted his evidence and the defendant was convicted and received a five-year sentence.
12. On 3 November 2011, the officer who had refused the claimant's fresh claim placed a notice on the claimant's file that he had given notice of appeal. This notice was accompanied by all the relevant documents relevant to his representations and their refusal. The First-tier Tribunal ("FtT") heard his appeal on 30 November 2011. The claimant was represented by counsel and the defendant was unrepresented. The FtT dismissed his appeal in a Determination sent out on 19 December 2011. The claimant's legal representative served a notice of appeal seeking permission to appeal to the Upper Tribunal ("UT") on the FtT on 5 January 2012 which, given the Christmas period, was the last day for the service of this in-time notice. The claimant would only have become appeal rights exhausted ("ARE") following the ultimate conclusion of the appeal process.
13. KLIT was notified by the relevant UKBA's ADMU Asylum Team who had previously been notified by the FtT, that the claimant's appeal had been dismissed by the FtT and placed an entry on the GCID dated 6 January 2012 that it would be linking with KCT once it had received the claimant's file back from KCT. On 9 January 2012, KLIT placed an entry on the CGID which read:

"[The claimant] referred for OP DICKENS on 31.01.12 see [redacted] for detention details."

No document or details of the redacted passage were disclosed and no evidence was given about their contents. It would appear that the redacted passage gave details of the arrangements for the claimant to be detained to await his removal on the charter flight to Afghanistan that had been arranged under Operation Dickens for 31 January 2012. No details were given of this Operation but it is clear from documents that have been disclosed that Operation Dickens was set up to organise and arrange charter flights to return Afghan nationals who were being deported to Afghanistan. That was the only way that such removal could be carried out and such flights only occurred infrequently. It is clear that one had been arranged for 31 January 2012 and it would seem that KLIT had been notified on about 9 January 2012 that the UKBA had referred the claimant to that flight pursuant to Operation Dickens.

14. The claimant was not the only Afghan who the defendant was seeking to return to Afghanistan who had been involved in the murder trial in which the claimant had given evidence. It was stated on the claimant's draft IS91 and 91RA notices prepared by KLIT on about 12 January 2012 that he had been a witness in a murder trial and that "the witness will be detained with 8 others involved in the trial". It was not stated what role these other 8 individuals had played in the affray in which the victim had been killed or in the subsequent criminal trial but the wording of the notice suggests that these other 8 individuals had not been prosecution witnesses.
15. KLIT appears to have started to take the decision to detain the claimant on 12 January 2012 following its receipt of instructions to include him in Operation Dickens. Three documents that were dated 12 January 2012 were prepared in draft. They were an IS91 Authority to Detain, an IS91R Reasons for Detention and an IS91RA Risk Assessment of the claimant in detention. None were signed but the name Tammy Hayes, who was an Executive Officer, was printed in capitals beneath the box that had been left blank for signature on each of them.
16. The unsigned Notice to Detain stated that the claimant should remain in detention because his removal from the United Kingdom was imminent – an obvious albeit unstated reference to the intention to remove him to Afghanistan on a charter flight which Operation Dickens had been planned for 31 January 2012 – and that the only factor relied on in deciding to detain him was that he had previously failed or refused to leave the UK when required to do so. It is not possible to say what that conclusion was based on since the claimant was arrested and claimed asylum on arrival. He had therefore been entitled to be in the UK from his arrival on 19 May 2008 until he became appeal rights exhausted on 31 March 2011. He had been granted temporary permission to remain in the UK from 19 April 2012 and, in the 19 days starting on 1 April 2012 during which he had no permission to remain, he could neither be detained nor removed since he was subject to Operation Barnham.
17. There was no evidence that Kent Police had, by 12 January 2012, granted KLIT its approval for the claimant to be detained. It is unlikely that Kent Police had approved the claimant's detention since it is likely that it would have waited until the defendant in the criminal trial had been sentenced and he had become ARE and that he did not become ARE prior to 12 January 2012.
18. I infer that EO Hayes on 12 January 2012 postponed taking a decision to detain the claimant because he was not ARE and was also subject to Operation Barnham. He would have been aware that KLIT was very conscious that the claimant was subject to Operation Barnham since it had confirmed this in its GCID entries dated 5 April 2011 and 4 and 18 October 2011 that he was still subject to Operation Barnham.
19. The FtT dismissed the claimant's application for permission to appeal on 17 January 2012 and sent a copy of this decision to the ADMU asylum team who, during the morning of 19 January 2012, notified KLIT that this application had been dismissed. What happened next is explained in this note placed by EO Hayes of KLIT on the GCID and on an unsigned Reasons for Detention Form later that day:

"OP BARNHAM …

Permission to appeal to 1^st Tier has been refused on 17/01/12. SCW [redacted] advised that we can maintain detention. HEO [redacted] made a call is to Senior PO [redacted] who confirm that we can maintain detention pending whether Upper Tier [application for permission to appeal] is submitted and whether this is on paper or oral hearing. If this does happen then we can consider bail at the time of submission.

HEO [redacted] advised."

The Reasons for Detention form identified that the claimant's detention had been authorised by SEO Marshall-Redding.

20. It can be seen that a Senior Case-Worker, a Senior PO and an HEO had all stated that the defendant could detain the claimant until it was known whether he had lodged with the UT his application for permission to appeal at which point his detention could be reconsidered prior to SEO Marshall-Redding's decision to authorise the claimant's detention. It can also be seen that the decision-maker, SEO Marshall-Redding, was aware that the claimant remained subject to Operation Barnham since this GCID note is headed "OP BARNHAM". SEO Marshall-Redding then verbally authorised the claimant's detention,
21. In a subsequent telephone call to an unidentified officer in KLIT, the claimant's legal representative was informed that the claimant had been detained because his application for permission to appeal had been refused and that he would remain in detention until the UT reached a decision.
22. Just before the detention team set out, its team leader contacted Kent Police to obtain the claimant's current address because KLIT did not know or could not find the claimant' current address. The detention team then set out to detain the claimant who was detained at about 13.15 hours on 19 April 2012. He explained what happened when he was detained in his witness statement which the parties had agreed and the court had ordered should stand as his evidence.

"22. On 19 January 2012 at about midday I answered my front door to a female police officer who I recognised from the criminal trial. She gave me the clothes that were taken when the homicide incident happened. A few minutes later, three immigration officers came; there was one woman and two men. They said I was to be deported.

23. I was transported in a van with two of the immigration officers (one male, one female); the police officer had left. They locked the door behind us. My neighbours were looking and they looked upset; they told the immigration officers to look after me. They were English people who were about 60.
24. I was transported to Dover Immigration Removal Centre; we stopped once en route for 15 or 20 minutes. I felt awful and I was scared about what might happen to me in the detention centre.
25. I remained in Dover IRC until 9 February 2012. First we were booked into the centre and then taken into a room. I realised I was powerless to do anything in detention.
26. I eventually telephoned my solicitor. She was shocked that I had been detained. She said that she had lodged the appeal at court but had not received any papers back yet.
27. I was in the same cell at Dover for the whole time. I was with my friend Salwar. I helped interpret for my other friends whilst I was there. I spent most of my time watching cricket. I did not ask anyone in Dover what was happening. I talked to my solicitor a few times. I felt fed up and like I wanted to go back to Afghanistan but my solicitor reassured me that I would be released from detention. I was not told any information by anyone else whilst I was there. I felt hopeless about the lack of information.
28. There was an incident whilst I was detained at Dover where another detainee threatened me with a snooker cue because I beat him at pool a few times. I was scared of him and he was older than me.
29. I did not sleep well in detention. It was noisy, people would shout and make noise. Before detention I would sleep for 8 or 9 hours night, after I was released from detention I found it difficult to sleep.

…

30. After my release from detention my friends said I was different. I would get angry quickly. I did not sleep well at night. I would lie awake until at least 3am. I had frightening nightmares about being caught and deported to Afghanistan. My flat-mate in Folkestone said that on one occasion he came into my room one night because he heard me screaming loudly. I felt frightened when I saw uniformed police officers. I was terrified when I had to report to the Home Office twice each week but I still went."
31. The WPC had left just before the arresting team arrived and she took no part in the claimant's detention. It is clear that the WPC was not part of that team and was not involved in the detention but it is equally clear that her arrival in the manner she arrived just before the arresting team would have caused the claimant considerable upset and that he must have thought that he was being arrested by or on behalf of the police. The defendant called no evidence to challenge this evidence despite being ordered by the Master at two pre-hearing conference that it should serve a witness statement or statements it intended to rely on in relation to any issues of fact to be decided on at the trial. The claimant's witness statement was credible particularly since it remained unchallenged despite it being served well before trial. I conclude that this evidence should be accepted and that the claimant's detention was carried out in the manner described by him.
32. There were three pieces of evidence which suggested that Kent Police never agreed to the claimant being detained and that KLIT was in breach of the requirements of Operation Barnham that KLIT was required to adhere to that he should not be detained without Kent Police's agreement. Firstly, KLIT did not know the claimant's current address and Kent Police at a low operational level provided it without any suggestion that he was now free to be detained. Secondly, Kent Police had not attempted to return the claimant's clothing that it had detained until one of the officers in the criminal case learnt that he was about to be detained by KLIT and went round immediately with his clothing so that he would not be without it. That officer was not part of the detention team and her lack of involvement in the detention indicated that Kent Police had only been aware that he was to be detained on being telephoned by KLIT and were only returning his clothing because he was about to be detained and removed. Thirdly, EO Hayes's GCID posting on 19 January 2012 was headed "Op Barnham" which suggested that the claimant was still within that Operation on 19 January 2012. Had Kent Police previously agreed to the claimant's detention, KLIT would have known or have been provided with the claimant's current address long before it went round to detain him, it would already have returned his clothing prior to the day of his detention and EO Hayes would not have referred to Operation Burnham in the GCID note dated 19 January 2012 as if that Operation was both on-going and still relevant to the claimant's current circumstances.
33. On 20 January 2012, EO Hayes posted this significant entry on the GCID Case Record Sheet:

"As [the claimant] still has appeal rights until 31/01/12 we cannot set [removal directions] until [appeal rights exhausted] date of 31/01/12 (if [he] does not [obtain permission to appeal] to Upper Tier).

Email sent to CROS Operations to inform them to remove from this charter and place on next."

34. On the same day, another Immigration Officer undertook a 24-hour detention review and maintained the detention. The review decision stated:

"Refer [the claimant] for Op Dickens once [the claimant] becomes ARE [which] are dependent on if the Upper Tier app is submitted (sic)."

Given their factual background, the meaning of these hastily drafted and ungrammatical reasons was as follows:

"The claimant's detention was maintained so that he could be placed in the Operation Dickens removal programme once he became ARE. This intention to remove him on the forthcoming charter flight was liable to change if he submitted an application for permission to appeal to the UT, particularly if he was granted permission to appeal. He would be placed in Operation Dickens the moment his time for lodging an appeal had passed without him lodging one or, if one was lodged, the moment he subsequently became ARE."

The decision did not consider whether detention conformed to the defendant's detention policy, whether EO Hayes was correct to point out that removal directions could not currently be set, whether the claimant should be released from detention because his removal was not imminent or the contents of the email EO Hayes had already sent to CROS informing it to remove the claimant's name from the forthcoming charter flight.

35. The defendant did not disclose a copy of this email nor any documents relating to the claimant's potential placement on the charter flight of 31/01/12 nor to the date and arrangements of the next charter flight which was not due for several weeks. Moreover, there was no evidence as to why that 24-hour decision was taken in those terms given the directly contrary view that had been reached by EO Hayes earlier that day.
36. Later that day, an officer whose name was redacted from the disclosed GCID Case Record Sheet explained "the case" to the claimant according to the note on the GCID. The contents of that explanation were not disclosed.
37. On 22 January 2012, the three-day detention review took place. This merely affirmed the claimant's detention without any explanation or reasons. On 23 January 2012, the claimant's solicitors sent the UT a renewed notice applying for permission to appeal and informed the defendant by telephone that it had done so. The representative that the legal representative spoke to stated that the claimant would remain in detention until that renewed application had been decided.
38. On 26 January 2012, the seven-day detention review took place. An unidentified officer whose name was redacted from the disclosed detention review document stated that detention should be maintained because KLIT was waiting to see if the claimant appealed to Upper Tribunal. On a different Detention Review sheet in a different handwriting but with a redacted name, the decision was also to confirm the claimant's detention but in these slightly different words:

"Maintain detention as [the claimant] needs to be referred for Op Dickens when/if [he] becomes ARE."

There was no explanation as to why there were two differently worded decisions. One based it on the KLIT waiting to see whether an appeal would take place before deciding on his release and the other on waiting to see whether he became ARE.

39. On 2 February 2012, a 14-day review was undertaken by an IO whose name was redacted from the decision. This was to maintain the claimant's detention because he had submitted an application for permission to appeal to the UT which was now being considered by the UT judge. It followed that the claimant should remain in detention to await its outcome.
40. On 3 February 2012, the UT faxed its decision granting permission to appeal to the UKBA with a request that a copy should be forwarded to the claimant. For unexplained reasons, the UKBA did not forward a copy to KLIT until 8 February 2012 following chasing telephone calls from the claimant's legal representative on 6, 7 and 8 February 2012. The claimant was released from detention on 9 February 2012 having been granted temporary admission and made subject to a condition that he reported every Tuesday and Thursday.

The Law

41. The law relating to an immigrant's administrative detention has become unnecessarily complex. However, it may be shortly stated as it applies to this case as follows:

(1) An immigrant, even if he has overstayed and remains in the United Kingdom unlawfully, may only be detained for the purpose of being deported if the period of detention is no longer than is reasonable in the circumstances. The power to detain should not be used if it is impossible, or it becomes impossible, to effect removal within a reasonable time and the Secretary of State should act with reasonable diligence and expedition to effect removal (R(Lumba) v SSHD^[1] explaining the Hardial Singh principles).

(2) Detention should be used sparingly and for the shortest period necessary. If a person has lodged a suspensive appeal that needs to be resolved before removal can proceed, that must be taken into account in deciding whether continued detention is appropriate (Paragraphs 55.1.3. and 55.14. of the defendant's Policy^[2]).

(3) There is a presumption in favour of temporary release and strong grounds are needed to detain on the basis that the individual will not comply with the conditions of temporary release. All reasonable alternatives to detention must be considered before detention is authorised and each case must be considered on its merits (Paragraphs 55.3.1. – 55.3.3 - EIG).

(4) The reasons for detention should be justified and correctly stated (Paragraph 55.6.3 - EIG).

Procedure

42. The defendant called no evidence and served one witness statement which was of no value since it was provided by a witness who had no personal knowledge of the case and merely exhibited documents and summarised their contents. This summary did not comply with the requirements of the Civil Evidence Act or the CPR regarding hearsay evidence so that the contents of the documents as summarised was not admissible as evidence. Furthermore, the defendant did not disclose many disclosable documents which were potentially helpful to the claimant. All these failings meant that the defendant essentially had no case save by way of comment and inference about the claimant's case.

Findings of fact related to the claimant's detention

43. The claimant was never, between his arrival in the UK 19 May 2008 and his detention on 19 January 2012, under any obligation to leave the UK and was not capable of being lawfully removed. He was subject to Operation Barnham following his witnessing an affray in which someone he knew was killed and a young Afghan was tried for and convicted of manslaughter as a result of his giving evidence over four days in October 2011 on behalf of the Crown. He was inexplicably served with a Notice of being Liable to Removal even though he was not liable to being removed when this notice was issued and had never been liable to be removed since his arrival on 19 May 2008.
44. His fresh claim submitted in July 2011 had been refused by the defendant but, unusually, he had been granted the right to appeal this refusal by the defendant because his potential appeal had prospects of success. KLIT was instructed in early January 2012 to place the claimant within Operation Dickens along with 8 other Afghans who had not given prosecution evidence at the trial but who were otherwise, and it would appear, unmeritoriously involved in the death of the victim and in the affray that had led to that death. At the time it received those instructions, KLIT had not been given the go-ahead by Kent Police that the claimant's part in Operation Barnham had ceased and he could be detained and removed. Moreover, he had embarked on an appeal against the dismissal of his fresh claim appeal and was not ARE.
45. EO Hayes of KLIT was fully aware of his involvement in Operation Barnham and its consequence that he was not able to be detained or removed. The purpose of involving him in Operation Dickens was to ensure that he was placed on a charter flight to Afghanistan that was due to leave on 31 January 2012. These charter flights were the only means of ensuring his removal to Afghanistan and they were few and far between. Thus, if he could not be placed on this particular flight, he would not be able to be removed for some weeks.
46. The claimant was detained on 19 January 2012. The relevant decision-makers appear to have ignored or not been aware of various significant matters which each should have taken into account in deciding that the claimant should be detained. That detention was maintained in a series of decisions taken subsequently. The first was the 24-hour detention review decision that was taken on 20 January 2012. This was followed by the 3-day detention review decision taken on 22 January 2012, the 7-day review decision taken on 26 January 2012 and the 14-day review decision taken on 2 February 2012. The defendant also failed to release the claimant from detention for a period of 5 days between 3 February 2012 and 8 February 2012 despite the UT decision dated 3 February 2012 that his application for permission to appeal to the UT should be allowed and his substantive appeal should proceed in the UT.
47. There was evidence that many significant matters had not been taken into account in reaching these decisions and several matters of policy relating to detention were never considered. Moreover, the various anonymous decision-makers taking these various decisions ignored and failed to adhere to EO Hayes's seemingly correct advice that she had posted on GCID on 20 January 2012 that removal directions could not be set for the claimant in the foreseeable future and that the claimant could not be removed on the flight scheduled for departure on 31 January 2012 so he should be removed forthwith from that flight.

Discussion

48. Introduction. The seeds of difficulty in this case were sown on 14 January 2011 when the claimant witnessed but did not participate in a serious affray involving two gangs of Afghani men that led to the death of his friend and, given his preparedness to work with the police, to his becoming part of Operation Barnham. Soon afterwards, on 19 February 2011, his in-time application for an extension of his discretionary leave to remain was refused. This did not take effect until 19 March 2011 during which time he was an unfortunate casualty of the financial collapse of his solicitors that gave rise to his consequent inability to obtain alternative solicitors and serve a notice of appeal. This in turn led to his being served with a notice of his being liable to be removed on 19 April 2011 despite his being part of Operation Barnham. However, he had no liability to be removed or detained whilst part of Operation Barnham since the police required him to play a prominent part as a significant prosecution witness at a forthcoming major criminal trial in Maidstone Crown Court. Finally, on 20 July 2012, having finally found new solicitors, he served a fresh claim on the defendant which had sufficient credibility to provide him with a right of appeal despite it being refused.
49. In the light of the claimant's involvement with Operation Barnham, the refusal of his application to extend his discretionary leave to remain, his becoming ARE largely due to the misfortune of his solicitors' financial difficulties and consequent administration and his having been entitled to be present in the UK since his arrival nearly four years previously, it would seem that a more appropriate decision by KCT in April 2011 would have been to grant him six months discretionary leave to remain and not to serve him at that time with a Notice of being Liable to Removal. The particular significance of this decision was that it led the UKBA to direct him to be subject to Operation Dickens before he had been cleared for detention or removal because it had been notified on GCID that he was subject to an IS151A and to temporary admission. No formal notification of his involvement in Operation Barnham was notified so he was treated in January 2012 as someone who could be removed without any prior notification and at short notice.
50. Decision to detain taken on 19 January 2012. The signed IS91R was not provided in evidence. I find that this document was signed or authorised by SEO Marshall-Redding and that it was identical to the draft dated 12 January 2012 with only the date changed. Thus, the decision-maker took account of the draft which provided as the reason to detain the claimant that his removal was imminent and had previously failed or refused to leave the UK and of the reported views of the three Immigration Officers who were reported to have advised that detention could be justified since the claimant's application for permission to appeal had been refused and that detention could be maintained until the outcome of any further application to the UT was known when his detention could be reconsidered in the light of the situation following that outcome. Indeed, given that the claimant was already subject to an IS151A and given these various views, SEO Marshall-Redding's decision would appear at first blush to be both sustainable and impregnable.
51. However, the decision is fatally flawed for the following reasons:

(1) It did not consider the claimant's apparent on-going involvement with Operation Banham. There were good reasons for the Police not wanting the claimant released from that Operation despite the forthcoming charter flight. For example, it might well be considered unsafe for him to be removed on the same charter flight as the other 8 Afghanis who had been involved in the incident and subsequent trial since they might be extremely hostile to him. Moreover, the convicted defendant might not have been ARE and there was no evidence that the Police had approved his release from Operation Banham or his detention and immediate removal.

(2) The decision was in part based on the entirely erroneous belief that the claimant had refused or failed to leave the UK previously but, in fact, there had been no such failure or refusal. Moreover, he was not considered to be an abscond risk and there was no objective evidence that he was one.

(3) The claimant was not ARE. All KLIT members who considered his case asked and answered the wrong question when considering the position that he was in given that he was not ARE. All appear to have considered that he could be detained without considering the corollary of that position which was that he could be detained but only if his removal was imminent. Given his position at that time, his removal was not imminent. It was, or should have been, clear that he could not take the charter flight leaving on 31 January 2012 since there was no realistic prospect of his being cleared for removal on 31 January 2012 which was only 12 days away and the next charter flight would not take place for some weeks thereafter.

(4) No thought was given as to whether, in fairness to him in the light of the considerable help he had provided to the police and the prosecution in what must have been trying circumstances, he should be allowed some notice and more time to prepare himself for both his return journey and his homecoming.

(5) He could not have had a hopeless case for obtaining permission since his was one of those rare cases where the defendant had refused representations although accepting that they amounted to a fresh claim and then granting him a right of appeal.

(6) Given that his case was that he in need of protection from persecution, the question of whether he should be returned or detained at that point should have been, but was not, considered with anxious scrutiny.

(7) No consideration appears to have been given as to whether his detention would be longer than was reasonable, whether in any event detention was necessary given it should be used sparingly and whether the presumption in favour of continued temporary release was applicable.

(8) Finally, no – or wholly inadequate – reasons were provided to explain why he was being detained. At best, the only reason that was given to the claimant via his legal representative was that his FtT application for permission to appeal had been refused. If that was the only reason, it was wholly inadequate. If there were other reasons, these should have been provided.

52. In short, detention was unjustified and unlawful since it contravened several policies set out by the defendant, removal was not imminent and the reasoning was fatally flawed since it took account of erroneous matters and failed to take account of several highly material matters. These errors were compounded by the provision, only informally, of wholly inadequate reasons.
53. 24-hour review decision taken on 20 January 2012. The 24-hour detention review decision that was taken on 20 January 2012 by an anonymous Immigration Officer whose name was redacted and was not printed on the relevant form. The decision has three overriding errors. Firstly, it both ignores and fails to give effect to the views of EO Hayes posted on the GCID on 20 January 2012. EO Hayes demonstrated conclusively that removal directions could not be set until a date then after the last date for setting them had passed if the claimant was to be placed on the flight on 31 January 2012. Secondly, EO Hayes had emailed the flight organiser to inform them to remove the claimant from that flight already. Thirdly, it envisaged referring the claimant to Operation Dickens once he became ARE even though it was impossible for him to be removed on the 31 January 2012 flight and no subsequent flight had been announced and would, in any event, be some weeks after 31 January 2012. It was also both unjustified and unlawful.
54. The decision also suffers from all the flaws and deficiencies of the initial decision.
55. 3-day detention review decision taken on 22 January 2012. No decision was disclosed. The only evidence of the decision and the reasons for that decision was contained in the GCID which stated in a note dated 22 January 2012 that detention was to be maintained because of the claimant's possible appeal to the UT and his then subsequently becoming ARE. No thought was given to the by then obvious fact that it would not be possible for the claimant to be placed on the flight on 31 January 2012 since he would not become ARE in time. The decision, or more accurately the lack of a decision, was unjustified and unlawful.
56. 7-day review decision taken on 26 January 2012. Two separate reviews appear to have been carried out, both concluded that detention should be maintained. This decision was also unjustified and unlawful.
57. 14-day review decision taken on 2 February 2012. This decision was similar to the 7-day review decision and was similarly unjustified and unlawful.
58. Failure to release the claimant from detention for a period of 5 days between 3 February 2012 and 8 February 2012. The defendant's explanation for this delay was that it was awaiting a copy of the decision. It provided no explanation to the obvious fact that, whatever the decision, the claimant could not be placed on the flight on 31 January 2012 and that his removal was not in consequence imminent since the next flight was some weeks off. Thus, he should have been released in any event. This period of detention was additionally unlawful on that ground.

Conclusion - Detention

59. The claimant should not have been detained and the entire period of 21 days during which he was detained is a period for which he is entitled to damages for unlawful detention and false imprisonment.

Damages

60. The claimant cited a number of relevant cases from which the following principles can be drawn:

(1) The detention was unlawful from the outset with a sum of £4975 awarded for the first day, allowing for inflation since the original decision was promulgated in 1998^[3].

(2) It would not be surprising if a detention of less than three days but more than two days would lead to an award, allowing for inflation since this judicial view was promulgated in 2006, of £6,000^[4].

(3) A basic award for 24 days of unlawful detention of the spouse of an EEA national was set at £14,420, allowing for inflation since the original decision was promulgated in 2010^[5].

(4) A global award should be made which awards an amount which, broadly, tapers so as to reduce the notional daily rate awarded the longer the unlawful detention lasts^[6].

61. The claimant was, from the outset in this case very conscious that his detention was unlawful and the shock clearly profoundly affected him. The claimant's counsel submitted that, taking the authorities and the claimant's factual situation into account, that an award of £15,000 would be appropriate. I consider that to be marginally too high and I award £14,250.

Personal injury

62. The claimant was profoundly affected by his detention as his own evidence shows. He was examined by a psychiatrist who concluded that his pre-detention health was normal other than occasional nightmares and mood swings. However, he was clearly deeply shocked by his initial detention with symptoms of anxiety and fear of both detention and deportation and displayed clear signs of Adjustment Disorder with anxiety features as classified under the DSM in 5 Code 309.24. The report advised that his symptoms would place him approximately in the middle of the appropriate award range. The defendant neither called expert evidence nor challenged the claimant's expert evidence.
63. The appropriate award range published by the Judicial College Guidelines is such that the type of injury described by the claimant's psychiatrist, whose evidence I accept, warrants an award of £3,000.

Aggravated damages

64. In this case, the defendant repeatedly failed to address the legal constraints to detaining the claimant, persistently failed to explain why it was detaining him despite his on-going appeal process and failed to address his status as a prosecution witness, his Barnham status or the fact that the first available charter flight was several weeks ahead since he could not be placed on the flight due on 31 January 2012. Furthermore, the defendant did not serve any admissible evidence in either witness statement or documentary form and its records of the reasons for detention and continued detention were sparsely and wholly inadequately documented.
65. In consequence, I award a sum of £2,000 for aggravated damages.

Overall conclusion

66. The claimant's claim succeeds. He is awarded a total of £19,250 damages. To this sum, a 10% uplift should be added for all heads of damage following Simmons v Castle^[7]

Note 1   [2011] UKSC 12, 1 AC 245.    [Back]

Note 2   Enforcement Instructions and Guidance (“EIG”).    [Back]

Note 3    Thompson v Commissioner of Police of the Metropolis [1998] QB 498, CA.    [Back]

Note 4    R(E) v SSHD [2006] EWHC 2500(Amin), Mitting J.    [Back]

Note 5    MK (Algeria) v SSHD [2010] EWC Civ 980, Laws LJ, CA.    [Back]

Note 6    Ibid., 515 D - F    [Back]

Note 7    Practice Note [2012] EWCA Civ 1288, [2013] 1 WLR 1239.    [Back]