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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Sapkota, R (on the application of) v Secretary of State for the Home Department [2017] EWHC 2857 (Admin) (13 November 2017) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2017/2857.html Cite as: [2017] EWHC 2857 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		13 November 2017

Miss Rose QC:


 


1. This is a claim for damages for false imprisonment, arising from the Defendant's decisions to curtail the Claimant's leave to remain and to detain him, made on 9 November 2015. The Claimant was in immigration detention between 9 November 2015 and 14 December 2015, when he was released on bail: a period of 36 days.
2. Following the hearing of the Claimant's claim for judicial review, the Administrative Court (Richard Clayton QC, sitting as a Deputy High Court Judge) decided on 20 December 2016 that the decisions to curtail the Claimant's leave to remain and to detain him had been procedurally unfair, and quashed the decision curtailing leave to remain. The Judge gave directions for a further hearing, including a summary of the issues to be determined, and directions for the exchange of evidence.
3. The issues for this hearing as originally framed in the Judge's order included both "the lawfulness of the Claimant's detention" and the quantum of damages for false imprisonment. However, counsel for the Defendant, Ms Walker, indicated at the hearing that she did not seek to press the argument that the detention had been lawful, in the light of the unequivocal finding made by the Judge at paragraph 60 of the judgment that the detention was unlawful, because of the absence of a fair procedure. She was undoubtedly right to do so.
4. In these circumstances, the questions before me are (1) whether any substantial damages should be awarded for false imprisonment, or merely nominal damages, on the basis of the principles set out in Lumba v Secretary of State for the Home Department [2011] UKSC 12, and, (2) if so, the quantum of those damages, including the question whether any award of aggravated damages should be made.
5. Two further matters arose at the outset of the hearing before me, namely:

i) The Claimant's late application to adduce expert evidence; and

ii) The question whether the Defendant was seeking to cross-examine the Claimant.

6. I refused the application to adduce expert evidence, for reasons which I gave orally at the hearing. In essence, the application was made much too late, to the potential prejudice of the Defendant, and, in any event, the evidence sought to be adduced was unlikely to be of assistance, given its substantial defects.
7. Ms Walker indicated at one stage that she might seek to apply to cross-examine the Claimant. However, she ultimately elected not to make any such application. As a result, the Claimant's written evidence contained in his witness statement dated 11 July 2017 stands unchallenged, both as to the events which occurred when he was detained, and as to his experiences in detention and their effects on him. Moreover, no factual evidence was adduced by the Defendant giving any different account of events from that contained in the Claimant's witness statement.

Facts

8. This judgment should be read together with the judgment of Mr Clayton, which sets out the factual background leading to the Claimant's detention in detail. I am of course bound by the findings of fact contained in that judgment.
9. In summary, the Claimant is a Nepalese national, who entered the United Kingdom in 2009 as a student. By 2015, he had leave to remain as a Tier 4 (General Student) valid until 28 December 2015.
10. On 3 June 2015 he became engaged to be married to a Portuguese national named Maria Fernandes, who was exercising Treaty rights in the UK.
11. On 9 November 2015, the Claimant and Ms Fernandes were interviewed by immigration officers who concluded that the proposed marriage would be both a sham and bigamous. The Claimant's leave to remain was curtailed with immediate effect, and he was taken into immigration detention.
12. The decision was principally based on an email, apparently sent by the Claimant to the Defendant (from the Claimant's email account), and dated 6 September 2012, stating that he was already married to a Nepalese national named Susmita Dahal. The Claimant denied that he had sent the email, and denied that he was married to Ms Dahal, but was unable at the interview on 9 November to provide any evidence to support his denial.
13. On 29 April 2017, in the course of these proceedings, the Claimant produced an email from Ms Dahal stating that she had been in a relationship with the Claimant, but had never married him, and that she had been married to someone else on 9 August 2016. The email was accompanied by wedding photographs.
14. Mr Clayton drew the inferences on this basis, at paragraph 35 of his judgment, that (i) the Claimant had never been married to Ms Dahal; (ii) it was most unlikely that the Claimant had sent the email claiming that they were married; and (iii) it was probable that someone else had sent the email.
15. He concluded at paragraphs 57 - 59 of his judgment that the Defendant's decision was unfair, because the Claimant was confronted with the email for the first time at the immigration interview. He was given no opportunity to rebut the allegation that he was married to Ms Dahal before the decision was made to curtail his leave and detain him. There was no evidence that there was any urgency which meant that the immigration officers had to make an immediate judgment once the interviews had concluded. It was accordingly unfair for the adverse judgment to be made at that stage.
16. Mr Clayton further found that the key issue in the case was

"the adverse decision formed by the immigration officers about the sham and bigamous marriage. … much of the material alleged against the claimant was ambiguous. It could be construed either way, and was, in fact, construed adverse to the claimant because of the negative conclusions about his credibility in relation to his denial of his marriage to Susmita Dahal" (paragraph 57).

17. I read that passage as amounting to a finding that the adverse findings of fact made against the Claimant in the decision curtailing leave, including adverse findings about the sham nature of his proposed marriage, were tainted by the unfair and (as it turned out) incorrect finding about his alleged previous marriage, and the consequential adverse conclusions about his credibility.
18. For the purposes of this hearing, the Claimant signed a further witness statement on 12 July 2017 giving more details of his treatment at the time of his detention, and the subsequent events. As set out above, this evidence was unchallenged.
19. The Claimant's witness statement set out in detail the events of 9 November 2015. In particular, he stated as follows:

i) The immigration officers were very aggressive in their questioning;

ii) He was shocked and very distressed at the unfair treatment and the lack of any real chance to explain how his relationship with Ms Fernandes was genuine, or to respond to the "ambush" with the email;

iii) The Claimant was further distressed by humiliating questions asked by a male immigration officer of Ms Fernandes about her sex life with the Claimant;

iv) On the day of detention, he had arrived at 10 am as requested. He had had a coffee and croissant for breakfast at 9 am. At the interview location, he was kept in a cold room for more than 6 hours, until 4 pm. He was offered no food, and only a glass of water at that time. He was moved to a different room when he complained about the cold, but it was equally cold. He felt helpless because his phone had been seized and he was unable to contact anyone. He described this experience as "like being kidnapped".

v) At around 6 pm, an officer came to the room, handed him a paper, and said: "Mate! You have got to sign on this paper. We have found that you are already married with Susmita Dahal and you will be deported". The Claimant felt like the whole world was crushing him and his body was shaking. He asked about Ms Fernandes, but was told she had already left.

vi) The Claimant was then photographed and taken to another room where there were two officers and two other detainees. After some argument, he was allowed to call Ms Fernandes on his phone, to ask her to call him back on the payphone on the wall. There were some apples in the room, one of which the Claimant ate. It was his first food since 9 am.

vii) At around 8 pm the Claimant was handcuffed and put in a van to be taken to the detention centre. When he told the driver he was very hungry, the driver gave him his own cheese and onion sandwich, which was already in the van. The Claimant remained hungry.

viii) The Claimant arrived at the detention centre at 9.30 pm. He was required to hand over belongings including his watch, wallet and belt, and had a medical examination. When the doctor asked how he was feeling, he replied that "he would be happy if he could end his life right there."

ix) The Claimant was not offered any food on arrival, because the kitchen had already closed, but was given a bunk bed to sleep on.

x) The following day was a Tuesday, which the Claimant observes as a fast, as a Hindu. On Tuesdays he eats only dinner, which is then subject to various dietary restrictions. There was a lack of suitable food for him to eat on Tuesdays. He was only able to eat fruit, and as a result vomited every Tuesday from stomach acidity.

20. The Claimant had never been arrested or detained before. He states that he found the experience of detention shocking and embarrassing. He considered the period of detention, after careful thought, to be the worst time in his life. He was traumatised by the very poor conditions and environment in detention.
21. The Claimant states that after being detained, and even after release, his mental health has deteriorated. He has lost his usual habits like going to the gym, jogging, cooking, reading books, watching movies or going out with friends. He started to feel very low and pessimistic. He has no energy or passion to do anything and sometimes cannot get out of bed in the mornings. He has been diagnosed with depression/low mood, and has been prescribed an anti-depressant, Escitalopram (20mg), which he has been taking every day.
22. At the time of his detention, the Claimant had two jobs, with Heathplace Ltd and KFC. His average weekly pay for the last 7 weeks of employment was £94.09. He lost his jobs as soon as he was detained.
23. The Claimant believes that if his leave to remain had not been curtailed, and he had not been detained, he would have applied for further leave to remain. He remains in a relationship with Ms Fernandes.

Has the Claimant suffered any loss?

24. The burden of proof is on the Defendant to justify any period of detention. In the absence of lawful justification, such detention constitutes the tort of false imprisonment.
25. In this case, she cannot satisfy that burden, since the decision to detain was tainted by a public law error (procedural unfairness). As a result, the detention was unlawful, and, in principle, the Claimant is entitled to be compensated for loss and damage suffered as a result of the false imprisonment.
26. However, the Defendant in this case contends that the Claimant has suffered no loss as a result of the unlawful decision to detain him, because, had that decision not been made, he could and would have been lawfully detained in any event.
27. As the party making the assertion, on normal tort principles the burden is on the Defendant to establish on the balance of probabilities that she could lawfully and would in fact have detained the Claimant had no unlawful decision been made: see Lumba at paragraph 71; R (OM) v Secretary of State for the Home Department [2011] EWCA Civ 909, at paragraph 23. Contrary to the submission of the Defendant, it is not sufficient for the Defendant to show that a Wednesbury rational decision to detain the Claimant could have been made. The question for the Court is what, on the balance of probabilities, can the Defendant show she would have done had she acted lawfully (critically including, in this case, fairly).
28. The Defendant submitted that the Claimant could and would have been detained in any event (i) because the finding that the proposed marriage was a sham would have been made, even if the finding of bigamy had not; and (ii) because even if a fair procedure had been followed, the Claimant would not have been able to produce the evidence to rebut the allegation of bigamy sufficiently quickly to prevent a decision being made, rationally, to detain him.
29. I have no hesitation in rejecting these submissions. I note that no evidence has been put forward to support them. In any event:

i) the first contention is contrary to the express finding of Mr Clayton, noted above, to the effect that the adverse findings made about the Claimant's credibility, which were the foundation of the sham marriage conclusion, were tainted by the finding of bigamy. There is no material before me to support the assertion that the same conclusion would have been reached in any event;

ii) the second contention cannot be sustained in circumstances in which the delay in obtaining the evidence from Ms Dahal was at the very least exacerbated by the fact that the Claimant was in detention for over a month. There was no evidence to show that, had the Claimant been afforded a proper opportunity to rebut the allegation before an adverse finding was made, the Claimant would have been unable to obtain the evidence to do so.

30. I therefore conclude that the submission that only nominal damages are recoverable fails.

The quantum of damages for false imprisonment

General damages

31. General guidance on the correct approach to the assessment of general damages for false imprisonment is set out in Thompson v Commissioner of Police for the Metropolis [1998] QB 498. A higher rate of compensation is payable for the initial period of detention, to compensate for the initial shock. The Court in that case suggested a sum in the region of £500 for the first hour of detention, about £3000 for the first day (this would be the equivalent of about £800 and £5,000 today), and thereafter a daily rate at a progressively reducing scale for subsequent days of detention. However, this approach is not to be mechanistically applied: each case turns on its own particular facts. Detention is generally regarded as more traumatic for those of good character who have not previously been detained.
32. I note that the figures considered in Thompson should be further increased by 10%, as they predated 1 April 2013: see Simmons v Castle [2012] EWCA Civ 1288. This gives rough figures of about £900 for the first hour, and £5,500 for the first 24 hours.
33. Both the Claimant and the Defendant have presented a range of cases, in which varying sums have been awarded as general damages for false imprisonment. I have taken these into account, but, ultimately, must consider the facts of this case, on the basis of the general approach laid down in Thompson.
34. I consider that the initial detention of the Claimant was marked by very poor treatment, and that it was extremely (and unnecessarily) distressing and traumatic to the Claimant. I take into account the following matters:

i) The appalling manner in which the Claimant was treated on 9 November, including being held for most of the day in a room with inadequate heating, and not being provided with adequate refreshments. The pitiful episode in which he was provided with a cheese and onion sandwich by the driver of the van transporting him to the detention centre, and the lack of any food on his arrival there, reflect very badly indeed on the Defendant (though the compassion shown by the driver is admirable). If individuals are to be detained suddenly, without any notice, it is incumbent on those taking them into custody to ensure that they are properly cared for, and that their basic needs are met.

ii) The fact that the Claimant had not been arrested or detained before, and that he had no reason to anticipate arrest, since he had leave to remain in the UK. It is clear that the unexpected course of events increased his shock, embarrassment and distress.

iii) The casual and callous way in which the Claimant was informed of the curtailment of his leave, and his detention, which caused him further trauma.

iv) The humiliating and distressing circumstances in which he was accused of bigamy in front of his fiancée, with no opportunity to rebut the allegation, then detained without being given an opportunity to see her.

35. As set out in Thompson, aggravated damages may be awarded where there are aggravating features about the case which would result in the claimant not receiving sufficient compensation for the injury suffered if the award were restricted to a basic award. Aggravating features can include humiliating circumstances at the time of arrest or any conduct of those responsible for the arrest, showing that they behaved in a high-handed, insulting, malicious or oppressive manner, either in relation to the arrest, or in the conduct of the litigation.
36. I consider that the circumstances I have outlined above constitute humiliating circumstances at the time of arrest, and high handed and oppressive conduct by those who took the Claimant into custody. It is clear from his evidence, summarised above, that these circumstances had a serious adverse effect on the Claimant.
37. I consider that these circumstances may be reflected either in an enhanced award of general damages for the first 24 hours of detention, or in a separate award of aggravated damages. I bear in mind the need to avoid double counting.
38. However expressed, I consider that the sum attributable to the first 24 hours in this case ought to be £11,000. This may be regarded either as the appropriate sum for general damages, given the particular circumstances identified above, or as a basic award of £6,000 (in line with the updated Thompson figure), together with aggravated damages in the sum of £5,000.
39. As to the remaining period of detention, I take into account:

i) The lack of proper provision for the Claimant's religious needs, and the physical effect of this upon him (in the form of vomiting on Tuesdays);

ii) The long term adverse effect of the detention on his mood, including the prescription of anti-depressants.

40. Overall, taking all the relevant circumstances into account, for the remaining 35 days of detention I award the sum of £12,000. This makes a total of £23,000 for general damages.

Special damages

41. I award special damages for loss of earnings at the rate of £94.09 per week for the period until 28 December 2015, when the Claimant's leave to remain would have ended, had it not been unlawfully curtailed, making a total of £658.63. I consider that the Claimant is not able to show on the balance of probabilities that he would have received leave to remain after that date.

Aggravated damages

42. I have noted my approach to aggravated damages to deal with the circumstances of the detention above. I do not consider that the remainder of the Defendant's conduct, including her conduct of this litigation, warrants a further award of aggravated damages.

Interest

43. In principle, interest is payable on the sums awarded above in respect of general and special damages. As indicated at the hearing, I invite the parties to agree the appropriate award for interest.

Total

44. Accordingly, I award to the Claimant the total sum of £24,515.43 for general and special damages, together with interest.