Abdulrahman Mohammed was last week awarded £78,500 by order of a High Court judge. The career criminal had been detained unlawfully under immigration powers on three occasions by the Home Office for a total period exceeding a year.

Unusually, with both parties in agreement that the detention was unlawful, the issue in Mohammed v The Home Office [2017] EWHC 2809 (QB), was quantum: the amount of damages to which a claimant is entitled when wrongly deprived of his liberty by the state. No doubt due to the level of compensation arrived at by the court, the decision has been widely reported in the media.

The case is also notable for the strong suggestion by the Home Office that the claimant’s detention had been prolonged for political reasons, and for a powerful defence of due process by Edward Pepperall QC, giving judgment as a Deputy High Court Judge.

The tragedy of Abdulrahman Mohammed

On the face of it, the claimant in this case is a tabloid caricature of a foreign criminal bogeyman. His success in building a cricket score of convictions since arrival in the UK was matched only by his skill in avoiding deportation to his native Somalia for almost a decade.

During the war in Mogadishu he had, as a 13-year-old boy, watched his uncle summarily executed by armed men who had attempted to rob the family home and was forced to look on as a female cousin was raped by the same assailants. The men had then attempted to cut out his tongue with a bayonet.

A 17-year-old Abdulrahman Mohammed arrived in the UK in 1996, already broken, with moderately severe post-traumatic stress disorder: a fully-formed ticking time bomb that spent the next 15 years going off.

His crimes ranged from the petty to the serious: from disorderly behaviour and shoplifting to robbery, burglary, and possession of an offensive weapon. Following his second long stretch for robbery the Home Office formally attempted to deport him in January 2008.

He made a Rule 39 application to the European Court of Human Rights which effectively suspended any attempts to deport him, due mainly to the situation for those returning to Somalia. This prohibition was to continue until further notice.

The purpose of immigration detention

The law relating to immigration detention has been well explored by Free Movement (members can access a recently updated training course on the subject). The key thing is that, where used, the power to detain migrants should only be used pending deportation, where removal is a realistic prospect, and for a period of time which is reasonable in all the circumstances.

Due to the situation in Mogadishu, almost nobody has been forcibly deported there in the past decade. As held at an interim hearing in this case

The prospect of deportation for this Claimant to Mogadishu / Somalia within a reasonable period is, on all the available evidence, remote. As such and within her own guidance, the Home Secretary is required by law to facilitate the Claimant’s release. That this has been the position now for some time is obvious.

The idea that the Home Office were detaining this man with a view to deporting him was an argument which did not bear scrutiny.

And yet, the claimant was held for 41 days in 2012, 139 days in 2013, and 265 days in 2015-2016 under immigration powers. All of these periods of detention occurred after periods of lawful imprisonment, where the claimant was kept behind bars following the expiry of a custodial sentence he was finishing at the time.

Grounds for detention

Where an individual is held under immigration powers the Secretary of State must give reasons in writing. She did so in this case, stating as follows:

1. It must be considered that your criminality constitutes a level of behaviour serious enough to demonstrate to the Home Office that you have shown a blatant disregard for the laws of the United Kingdom. The Home Office has to take into consideration your criminal record and level of offending and has to judge that this is a clear indicator of risk that you pose to the United Kingdom. It is noted that you have received 23 convictions for 32 offences since you have resided in the UK.
2. Because of the severity of your convictions as detailed and your numerous other convictions the public of the UK expect your deportation.
3. Your criminal behaviour undermines the good order of society and renders you a threat to it. The United Kingdom is not required to keep here someone whose conduct strikes so deeply at its social values that it strains the tolerance of even a broadminded society.
4. If you are released from detention, our actions can lead to a negative view of the Home Office by the general public who may see the department as failing in its duty to protect them from criminals and therefore there is a high risk of harm to the public.”

Although the court stopped short of finding that the claimant in this case had essentially been kept in immigration detention for political reasons, this last factor is a fairly staggering admission. The Home Office appears to have justified its conduct in detaining a claimant who could not possibly be removed by reference to the potential damage to its reputation in doing so.

This is almost certainly a result of the 2006 foreign prisoner release scandal, where foreign criminals were found to have been released following their sentences, instead of detained with a view to deporting them.

Ironically, in attempting to protect its reputation with the public, the Home Office shells out almost £5 million of taxpayers’ money each year in damages to claimants who have been unlawfully detained under immigration powers.

Assessing damages

The real value of this decision for practitioners is the review of the authorities on quantum. Damages in most cases are agreed in out-of-court settlements and it is rare to see the meat which comprises these sausages, especially in respect of longer periods of detention.

Indeed, the leading judgments in this area emphasise the case-by-case approach to be taken by the courts when assessing quantum, looking at the circumstances of the individual in each case: Thompson v Commissioner of Police of the Metropolis [1997] EWCA Civ 3083.

The principles in Thompson were summarised more recently by Laws LJ in MK (Algeria) v Secretary of State for the Home Department [2010] EWCA Civ 980: damages should not be assessed mechanistically by awarding an amount per day of unlawful detention, and that the initial shock of detention would generally attract a higher rate of compensation than detention’s continuance.

In Thompson, decided almost 20 years ago, Lord Woolf held that

in a “straightforward case of wrongful arrest and imprisonment” the starting point was likely to be about £500 for the first hour of loss of liberty, and that an award of about £3,000 was appropriate for a claimant who was wrongly detained for 24 hours.

The “shock value” of entering detention is an important factor. In R (NAB) v Secretary of State for the Home Department [2011] EWHC 1191 (Admin) the claimant’s award was reduced from what it would otherwise have been as his unlawful detention had followed on immediately from a period of lawful imprisonment.

The criminal profile of the claimant would also be relevant in this assessment: R (Belfken) v Secretary of State for the Home Department [2017] EWHC 1834 (Admin). The shock of imprisonment to the uninitiated (say, Andy Dufresne in The Shawshank Redemption), would be greater than to a prolific recidivist (like Cyrus “The Virus” Grissom in Con Air) for whom incarceration is simply the price of doing business.

The place of detention and the regime in place there would also be relevant. Unlawful immigration detention in a prison – which remains common – attracts a greater rate of damages than in an Immigration Removal Centre: AXD v Home Office [2016] EWHC 1617 (QB)

Aggravating features

The award can also be increased by reference to particular features of a case.

In the present claim, whilst expressing unease with wording which suggests the Home Office maintained detention to protect its reputation, the court stopped short of finding that the “politics” of the position was dictating its decision making. This would have been an aggravating feature.

However, the fact that there was independent evidence that Mr Mohammed had been tortured, and that in such a situation detention could only be maintained in “exceptional circumstances” under Rule 35 (the Home Office acknowledged that there were none), constituted an “aggravating feature”, as well as “grounds for serious criticism of the Home Office” (see paragraph 56).

The Home Office conduct of the case – fully conceding that the claimant’s detention had been unlawful only the afternoon before the day of the trial – was another aggravating feature, and yet another example of the “enduring casualness” (R (Ademiluyi) v SSHD [2017] EWHC 935 (Admin)) of the state when litigating these claims.

Doing right, by bad people

In awarding such a substantial sum to Mr Mohammed, the judge acknowledged the frustration many feel with a system which, occasionally, appears to reward the least deserving.

At the same time, he explains why it is important to have done so, giving three reasons:

First, there are few principles more important in a civilised society than that no one should be deprived of their liberty without lawful authority.

Secondly, it is essential that where a person is unlawfully imprisoned by the state that an independent judiciary should hold the executive to account.

Thirdly, justice should be done to all people.

On that last point, the court invoked the comment in United States v. Rabinowitz (1950) 339 US 56, at 69, previously referred to by Baroness Hale in the UK Supreme Court, that

It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.