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Aggravated damages for “distressing and traumatic” detention


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Last week Suraj Saptoka was awarded £24,515.43 by order of a Deputy High Court judge for false imprisonment in Sapkota v Secretary of State for the Home Department [2017] EWHC 2857 (Admin). Mr Saptoka had been unlawfully detained for 36 days after immigration officials wrongfully decided he was attempting to extend his leave to remain by entering into a bigamous marriage.

Mr Saptoka’s detention

Mr Saptoka is a Nepali citizen, who had leave to remain until the end of December 2015. After getting engaged to an EU national, he applied to extend his leave.

On 9 November 2015 immigration officers interviewed Mr Saptoka and his fiancée. Mr Saptoka was confronted with an email suggesting he was already married, which he could not immediately disprove. The immigration officers concluded that the proposed marriage was not only a sham, but also bigamous.

That same day, Mr Saptoka’s leave was curtailed and he was taken to an immigration detention facility. He remained there for 36 days.

In December 2016, the Administrative Court (in an unreported judgment) unequivocally found that the detention decision had been procedurally unfair. He had not been given the opportunity to rebut the bigamy allegation before the decision to detain him was made.

Return to Administrative Court

When Mr Saptoka’s case returned to the Administrative Court, both parties were in agreement that the detention was unlawful. For interested readers, Free Movement has extensively covered immigration detention (including in a recently updated training course available to members).

Therefore the only issue before Dinah Rose QC was damages. Specifically:

  1. Whether Mr Saptoka should be awarded any substantial damages for false imprisonment (rather than just nominal damages)?
  2. If so, how much those damages should be?

The Secretary of State routinely makes offers to settle where she concedes the unlawfulness of the detention, meaning pure quantum cases often do not reach the courtroom. Therefore, the value of this case for practitioners is the High Court’s application of damages principles.

Substantial damages or nominal damages

Nominal damages set the Secretary of State back as little as £1, whereas substantial damages run into the tens of thousands. Consequently, a key battleground in immigration cases is whether false imprisonment warrants nominal or substantial damages. Mr Saptoka’s case was no exception.

The initial Administrative Court proceedings had found that the immigration official’s decision was tainted by the public law error (procedural unfairness). Following Lumba [2011] UKSC 12, where a public law error exists, the public authority must show that it “could and would” have detained the immigrant irrespective of that error. This is a high hurdle, which the judge had “no hesitation” in finding was not cleared by the Secretary of State [paragraph 29]. Mr Saptoka could recover substantial damages.

Quantum of damages: general principles

When assessing the quantum of general damages there are three key principles derived from the case law:

  1. Detention is generally more traumatic for a person of good character who is unfamiliar with the “clang of the prison gates”;
  2. A higher rate of compensation is payable for the first hour of detention and first 24 hours of detention, which then progressively tapers downwards for subsequent days of detention (Thompson v Commissioner for Police for the Metropolis [1998] QB 498); and
  3. When considering historic damages awarded there must be adjusted and uplifted to present day values (Simmons v Castle [2012] EWCA Civ 1288).

These principles are “not to be mechanistically applied: each case turns on its own particular facts” [paragraph 31]. A damages award can be increased by reference to particular facts and may include aggravated damages.

Mr Saptoka’s award

In total (including special damages for loss of earnings) Mr Saptoka was awarded £24,515.42, together with interest.

Dinah Rose QC found that Mr Saptoka’s treatment during and after arrest warranted aggravated damages. He was treated in a “humiliating”, “high handed and oppressive” manner. The initial detention was “extremely (and unnecessarily) distressing and traumatic” [paragraph 34]. In particular:

  • he was held for hours without heating and without adequate food or drink;
  • he was accused of bigamy in front of his fiancée with no real opportunity to rebut the allegation;
  • he was told of his curtailment of leave and immediate detention in a “causal and callous way”; and
  • his “shock, embarrassment and distress” was increased by the fact he had never been arrested or detained before.

For these first 24 hours she awarded Mr Saptoka general damages of £11,000.

The ill treatment continued throughout Mr Saptoka’s detention. For example, he was not provided food (other than fruit) that met his religious dietary restrictions, causing him to vomit regularly. For the 35 additional days of detention, the judge awarded £12,000.

The judge approached general and aggravated damages in tandem, rather than separately:

37. I consider that these [humiliating] 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.

She refrained from stating the ways in which the £12,000 for the subsequent 35 days could be expressed.

The judge’s approach reflects the fact that there is no precise arithmetical relationship between basic damages and aggravated damages, because the circumstances will vary from case to case. Her approach is not especially unusual or novel. Nevertheless, the Court of Appeal has previously suggested that separate consideration is preferable. The mode in which aggravated damages for unlawful immigration detention are calculated will clearly vary from judge to judge. Therefore, practitioners should prepare quantum submissions for either a holistic or a separate approach to aggravated damages.

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Clare Duffy

Clare is a public law teaching fellow at University College London.