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HIGH COURT AWARDS DAMAGES TO EU FAMILY MEMBER FOR UNLAWFUL DETENTION AND BREACH OF EU LAW

Posted by: Gherson Immigration

HIGH COURT AWARDS DAMAGES TO EU FAMILY MEMBER FOR UNLAWFUL DETENTION AND BREACH OF EU LAW

In the case of R (on the application of Santos) v Secretary of State for the Home Department [2016] EWHC 609 (Admin) the court awarded an appellant a significant sum of damages for both unlawful detention and breach of EU law. To understand the nature of the damages awarded it is necessary to first look at the facts.

The Claimant Mr Santos, is a Brazilian national, who came to the UK in 2002 with entry clearance as a visitor. Following the expiry of his visit visa he remained in the UK unlawfully. In November 2008 Mr Santos met his future spouse, Ms Batista, who is a Portuguese national. The couple married on 30 April 2010.

On 19 July 2010 Mr Santos applied for an EEA residence card on the basis of his marriage to Ms Batista, as an EU national. In October 2010 the relationship subsequently broke down. Following the breakdown of his relationship the Secretary of State for the Home Department ("SSHD") indicated Mr Santos had provided insufficient evidence for his application. The SSHD did not make a decision on the EEA residence card application and therefore no appeal right was triggered. The SSHD had though misunderstood what documents were required, stating that the original passport of the EEA national was required when in fact only the original passport of the applicant was required, which had been provided.

On 29 January 2012, 18 months after Mr Santos applied for an EEA residence card, he was arrested as an over-stayer and detained with a view to removing him from the UK.

After a failed judicial review that was declared "totally without merit"Mr Santos bought this second judicial review on 11 June 2012. Mr Santos applied for a judicial review of SSHD's failure to issue him with an EEA residence card; the decision to detain him and his proposed removal from the UK.

A decision to stop his removal pending the judicial review process was made, and on 30 June 2012 he was granted 'Temporary Admission' and released from detention, after just over five months in detention.

Mr Santos then made a further application for an EEA residence card on 16 November 2012. The SSHD refused the application on 11 July 2013 on the grounds that the copy ID of Ms Batistas provided (which was the same one used for his initial application of 19 July 2010) had since expired. Mr Santos successfully appealed the decision and was issued with an EEA residence card on 21 May 2014.

Mr Santos then brought a claim for his period of detention; the multiple attempts made to remove him from the UK; the consequent loss of earnings (the Home Office had incorrectly informed his employers that he was not legally allowed to work); the negative effect on his credit rating (he was unable to repay a loan whilst in detention); disruption caused to his relationships with family and friends; the delay in issuing the residence card; and the distress suffered. He succeeded on all grounds.

The High Court judge found that both the initial judicial review and refusals of bail were unsuccessful due to "inaccurate and misleading"information from the Home Office.

In looking at the remedies the judge took into account Mr Santos' own description of his time in custody which included 'helplessness','dehumanising nature of the treatment' and the 'diminishing effect on [his] self-esteem.'

Mr Santos was also detained in Colnbrook which he described as having been '...locked up for 23 hours a day, refused any association, and the ability to get a towel and shower.' Even after his release Mr Santos was prohibited from working or accessing public funds and eventually became homeless. The judge accepted Mr Santos' evidence as 'truthful and convincing.'

The judge was satisfied that Mr Santos was falsely imprisoned as 'there was not, at any stage any lawful authority for his detention and his detention was in breach of [SSHD's] policies.'

The damages awarded were as follows:

  • General damages for loss of liberty, shock, humiliation, loss of reputation and any psychiatric or physical injury. Physical injury included Mr Santos' complaint of back pain and inadequate care in detention. Taking into account Mr Santos' witness statement the judge awarded £40,000 in damages.
  • Special damages for financial loss following his unlawful detention. These were calculated on the basis of his loss of earnings by reference to his former employment. He was awarded £6,578.
  • Aggravated damages for additional humiliation and injury to dignity were awarded in the amount of £10,000. The judge highlighted the way Mr Santos was treated including officer's disregarding his attempts to explain his legitimate status and their dismissiveness to him were offensive and humiliating. Mr Santos' treatment in Colnbrook was also considered 'so degrading that it offended his personal dignity.'
  • Exemplary damages for 'oppressive, arbitrary or unconstitutional conduct by government servants.'The judge awarded damages of £20,000 citing the disregard for Mr Santos' EEA rights, depriving Mr Santos of a right of appeal, and failing to give accurate information to the court in both bail and judicial review proceedings.

The total damages for unlawful detention amounted to £76,578.

Breaches for EU law were dealt with separately but the judge was clear that damages awarded were not to duplicate the awards already made. The additional damages awarded were as follows:

  • Exemplary damages as there was no attempt made by the SSHD to rectify the mistakes made regarding the residence card. The judge felt that Mr Santos' rights were deliberately denied. Mr Santos was awarded £25,000 in exemplary damages for a breach of EU law.
  • Due to the SSHD incorrectly preventing Mr Santos from working, additional damages were also awarded for loss of earnings during this period amounting to £34,470. Again the calculation was made using Mr Santos' previous salary.

The damages for breach of EU law amounted to £59,470, which gave Mr Santos a total damages award of £136,048. It is expected that the Home Office will seek to challenge the judgment.

Whilst each case must be considered on its merits, we strongly urge all those in immigration detention to seek legal advice at the earliest opportunity as well as continuing to keep in contact with their legal representatives as the Home Office can and do often get things wrong, as exemplified by the many instances cited in this case alone.

Note: The above is an overview of a lengthy judgment and is in no way a substitute for reading the judgment itself.

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