The High Court heard a case in which an asylum seeker was subjected to very restrictive conditions while her fresh asylum application was being assessed by the Secretary of State for the Home Department (SSHD).
Background:
Mrs. Almas sued the SSHD for unlawful detention (UD) alleging that, on the 9th of April 2018, she was detained unlawfully while reporting to the Home Office under her conditions of immigration. She was released on the 23rd of April 2018 after she provided fresh submissions to justify her asylum claim.
She also claimed damages for breach of her ‘right to a family life’ under Article 8 of the European Convention of Human Rights (ECHR) and the Human Rights Act (HRA) 1998 because the Secretary of State took no fewer than 2 years and 9 months to make a decision on her fresh asylum application. During that period, “she was under restrictive conditions thereby: (1) preventing her from working or earning anything and requiring her (2) not to travel, (3) to live at only one address, and (4) to report monthly.”
Recorder McNeill allowed the claim on both grounds, awarded damages totalling £98,757.04, awarded indemnity costs to the claimant, and ordered a payment on account of costs of £30,000. The Secretary of State appealed.
Decision:
The High Court dismissed the Home Office’s appeal, upholding substantial damages awarded to Mrs. Almas. The Court first analysed the detention claim and found multiple breaches by the SSHD rendering the detention unlawful based on the leading authority R (Lumba & Mighty) v SSHD [2011]. The Court noted that a ‘but for’ analysis is needed of “whether the claimant would in any event have been detained if the appellant had applied the policy properly.” The SSHD should have analysed any potential absconding of Mrs. Alma in the context of her circumstances. The Judge agreed with the
Recorder’s report that there was a failure to consider alternatives to detention, inadequate risk assessment, and lack of proper authorisation.
The Court confirmed that the delay and restrictive conditions imposed during this period constituted a disproportionate breach of the claimant’s Article 8 ECHR rights, particularly given the Home Office’s failure to provide any evidence justifying the delay. Mr. Justice Ritchie noted “In my judgement, the Recorder was correct on the facts, that the claimant's Article 8 rights were breached by the conditions imposed by the appellant. She could not claim state benefits and was restricted to the limited sums paid to asylum seekers. Her ability to work and earn was abolished. Her ability to socialise, buy food, eat out, build a social or religious life, and all other aspects of her life were grossly restricted. She was also prevented from travelling. She could not build her status in society or her self-respect.”
The Court upheld both the award of exemplary damages after finding “outrageous” conduct warranting punishment and aggravated damages, as well as the costs order. The Judge noted that “Firstly, aggravated damages must be clearly distinguished as separate from and different from exemplary damages. Aggravated damages may be awarded where, in addition to and separate from the normal damages arising from and to compensate for the UD, further compensation is just and necessary to compensate for the manner in which the tort was committed by the appellant which resulted in humiliation or injury to the claimant's dignity, pride and self-respect (…) In contrast to aggravated damages, exemplary damages are punitive, intended to be a deterrent and are a mark of serious disapproval of the outrageous abuse of power through tortious conduct of an organ of the state with a view to preventing any future recurrence. The gateway through which a claimant must pass to receive such an award includes the need to prove that the state's tortious abuse of power was outrageous and needs to be punished and deterred.” As the right to liberty was at stake here, the failures of the Home Office in following its own policy, the fears expressed by Mrs. Alma, and the failure to properly risk assess amount to a ‘reckless disregard’ for Mrs. Alma’s rights, giving rise to such hefty punitive damages.
The judgement emphasises that the Home Office must justify lengthy delays and detention decisions with proper evidence and cannot rely on generalised arguments about resources without specific proof.
Implications:
This judgement underscores the need for the SSHD to treat asylum seekers and visa overstayers fairly. Secretary of State’s actions can be reviewed and lead to damages when the detention is unlawful and when the restrictions imposed “grossly restricted” a person’s ability to work or socialise for more than two years.
