A High Court judge has awarded the family member of an EU national a total of £136,048 in damages. The award consists of £76,578 for false imprisonment and £59,470 for breach of EU law. The Home Office is also criticised for having made “inaccurate and misleading” submissions to previous judges on multiple occasions and the damages include not just compensatory damages for lost earnings and distress but also special damages, aggravated damages and exemplary damages.

On the breach of EU law, the judge, Mrs Justice Laing, held that the Home Office had acted in an “outrageous, oppressive and unconstitutional manner” and to have displayed “a blatant disregard for the law.”

The case is R (on the application of Santos) v Secretary of State for the Home Department [2016] EWHC 609 (Admin). It makes sobering reading.

Background

In short, Mr Santos was living unlawfully in the UK in 2010 when he married an EU national and applied for a residence card. The relationship broke down later that year, but the couple remained married and the EU national carried on working. Mr Santos therefore continued to possess a right of residence under EU law as he was still the spouse of an EU national exercising treaty rights.

No decision was made on the residence card application, though, and in 2012 Mr Santos was arrested and detained as an overstayer. Following judicial review proceedings, Mr Santos was eventually released after 154 days in detention and finally received a decision on his application, which afforded him a right of appeal. His appeal was allowed and a residence card was issued in 2014.

The judicial review proceedings had been stayed pending the outcome of the appeal and were then revived.

So, Mr Santos complained of a delay of nearly 4 years in issuing a residence card, his unlawful detention for 154 days, repeated attempts to remove him during that time, lost earnings because the Home Office misinformed employers that he was unable to work and thereby deprived him of employment, a ruined credit history ruined following his detention (which rendered him unable to repay a loan), permanently disrupted family relationships and friendships and very considerable distress. He succeeded on all grounds and his evidence was found to be “truthful and convincing.”

Home Office lawyers criticised

This was all despite an earlier unsuccessful application for judicial review in 2012 in which Mr Santos had acted as a litigant in person. The judicial review application had then been refused permission and declared “totally without merit”. Mrs Justice Laing held that this was simply wrong, and that the previous judge had been led into error by a defence filed by the Home Office which was “inaccurate and misleading” in no less than 10 different ways.

One of these was that the Home Office claimed the application was totally without merit, which was on the information available to the Home Office an “inaccurate assessment”. It seems to be standard practice in ALL cases for the Home Office to ask for a totally without merit certificate, which if so is surely a breach of professional standards by solicitors at the Government Legal Department.

This is strong criticism of the Home Office’s conduct. And it gets worse. The judge also describes as “inaccurate and misleading” the bail summary that was used to resist the granting of bail to Mr Santos and which seem to have been relied on as accurate by the immigration judges who refused bail. This is all too common an occurrence: bail summaries are routinely inaccurate in my experience yet are assumed to be correct statements of fact by most bail judges.

I await a threat to refer such conduct to the Solicitors Regulation Authority or similar.

Damages

Laing J was careful not to confuse the awards of damages for unlawful detention and breach of EU law.

For the assessment of damages for unlawful detention, Laing J makes reference to the very helpful quantum tables in Detention under the Immigration Acts Law and Practice by Denholm and Dunlop (1st ed. 2015), previously reviewed here. Compensatory damages for lost earnings are awarded in the sum of £40,000. Special damages of £6,578, aggravated damages of £10,000 and exemplary damages of £20,000 are also awarded, coming to a total of £76,578 damages for unlawful detention.

The EU law damages total of £59,470 included lost earnings of £34,470 (the period of unlawful detention was separately compensated in the unlawful detention damages award) and also £25,000 of exemplary damages because of the “outrageous, oppressive and unconstitutional manner” in which the Home Office had behaved.

Implications for the future

The case is a very useful precedent for reinforcing the principle that damages can and should be awarded for breaches of EU free movement law. Laing J refers to Irish and Scottish authorities but until now there have been no reported cases from England and Wales where the quantum of damages is reported (although see this report of a recent settlement). Damages for breach of EU free movement law is something I have myself written on before and I suspect the increasingly legalistic and restrictive approach of the Home Office to EU law free movement rights is likely to generate quite a few damages claims.

At paragraph 157 Laing sets out the basic principles for awards of EU law damages:

First, the rule of law which has been infringed must have been intended to confer rights on individuals. Second, the breach must be sufficiently serious. Third, there must be a direct causal link between the breach and the damage suffered. Although the Member State has a discretion in determining the type of damages awarded, the rules must not be less favourable than for equivalent domestic claims and must not make it excessively difficult to obtain compensation, loss of profit cannot be excluded as a head of damage.

She goes on to find, in effect, that the the first two of these principles will be met in all cases where the Home Office fails to recognise an underlying free movement right:

The right to free movement and to issue of a residence card, and the procedural safeguards which ensure that those rights are effective in Member States, are clearly rules of law intended to confer rights on individuals. Breaches of those rules are sufficiently serious to warrant state liability.

Whether the third condition for ordinary damages in EU law is satisfied will depend on the facts. It will be necessary to prove that income was lost or not earned or that there were other direct financial losses as as result. Such a situation might arise, for example, where a person is sacked because the Home Office incorrectly advises an employer the person has no right to work or where the person would have been offered a job but for the fact the Home Office misinformed the employer.

Importantly, in Santos the period for assessment of damages for lost earnings ran from six months after the date of application for a residence card right through to the date the residence card was issued. It did not run from the date of the allowed appeal. This is important because there are a LOT of cases in which the Home Office makes an incorrect decision on EU law which is later overturned on a subsequent application or on appeal, and in all these cases there might be a case for damages if there has been a financial loss. Further damages could potentially have been pleaded for the period Mr Santos struggled to find work after the residence card was issued but this would have made little difference in this particular case.

However, even where there are no direct financial losses the Santos judgment establishes a basis for an award of exemplary damages where there has been particularly poor conduct by the Home Office. Remember that the EU law exemplary damages are separate and additional to the damages for unlawful detention. £25,000 was awarded for:

a sustained and deliberate refusal to give effect to the Claimant’s EU rights, over several years, during which time the Defendant displayed a blatant disregard for the law. Even after Burton J. granted a stay on removal in June 2012, and the Defendant released him, she deprived him of the right to work and the benefits of lawful residence, for nearly two years, and when called to account by the FTT, she was unable to put forward any justification for her refusal of a residence card.

The award of damages is a very significant one. The sheer scale of it puts me in mind of the High Court judgment in the Radha Patel visitor damages case. That judgment always seemed to be founded on somewhat shaky ground, though, and it was indeed overturned at the Court of Appeal. It was a very different context and did not involve EU law at all. This Santos judgment seems much more solid to me, although one suspects the Home Office will try to appeal anyway given how much there is at stake not just in this case but also in future cases. If I hear more, I will update here.