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Don’t clog up the Admin Court with damages claims, warns Court of Appeal


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The Court of Appeal in ZA (Pakistan) v Secretary of State for the Home Department [2020] EWCA Civ 146 has made a plea to lawyers to transfer their wrongful detention claims to the Queen’s Bench Division or County Court once the detention issue has been resolved.

ZA’s case started life as an unlawful detention claim in the Administrative Court. Interim relief was swiftly granted, leading to his release from detention a day after the claim was issued. A subsidiary ground of the original claim related to the timing of ZA’s asylum interview, and was also dealt with by his release. This left only the matter of damages for wrongful detention.

Transfer to the Queen’s Bench Division or the County Court

Lord Justice Dingemans reminds us of Civil Procedure Rule 54.3(2) which states that “a claim for judicial review may include a claim for damages, restitution or the recovery of a sum but may not seek such a remedy alone“. He goes on, at paragraph 72, to consider some of the benefits to the parties of transferring the claim:

So far as the Appellant is concerned there would have been no need to obtain permission to bring the claim, and there were contested issues about the grant of permission to apply for judicial review in this case, because there would have been unfettered access to the Queen’s Bench Division or County Court. There would have been a process for calling witnesses and for cross examination.

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Calling witnesses, he noted, would have benefited ZA, whose witness statement was rejected by the court because of its inconsistencies with the evidence.

In all fairness to the appellant, he did make an application for transfer, but the court refused it due to it being made so late in the day. It may be worth adding, then, that any application for transfer should be made in a timely manner.

It is not always so straightforward to work out where a claim like this should be heard. As noted by the court, the Admin Court is there to review the legality of public body decision-making. That seemed to be what was being requested here — part of ZA’s claim was that his detention was rendered unlawful by the Home Office’s own policy failings (see below).

In any case, arguments for keeping a case within the purview of the Admin Court will need to consider this procedural point.

Short Term Holding Facilities

The court also rejected an argument that ZA’s detention was made unlawful by the failure to provide a Rule 34/35 assessment on his being detained in Larne House, a Short Term Holding Facility.

ZA argued that Rules 34 and 35 of the Detention Centre Rules are not exclusive to Immigration Removal Centres but apply to all forms of immigration detention, including Short Term Holding Facilities. The Home Office argued in turn that the Rule 34/35 process is exclusive to IRCs. Unhelpfully the court declined to reach a conclusion on this issue, deeming it academic.

During the proceedings the Secretary of State tried to argue that she had no policies, only “practices”, relating to healthcare assessments in Short Term Holding Facilities. It would be alarming if the treatment of vulnerable, mentally unwell and frequently traumatised individuals was so informally regulated. Hopefully this isn’t the last word on the issue.

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Larry Lock

Larry works at Bhatt Murphy Solicitors. He previously managed the Prisons Project at Bail for Immigration Detainees, and was a senior caseworker in the immigration department at Wilson Solicitors LLP.