High Court upholds award of £98,757 damages to refugee

The High Court has dismissed an appeal by the Home Secretary against an award of damages to a refugee in the amount of £98,757.04 in respect of her unlawful detention and breach of article 8 relating to the delay in granting her status. The case is Secretary of State for the Home Department v Almas [2025] EWHC 212 (KB). Indemnity costs were also awarded against the Home Secretary in the lower court and that decision was not challenged.

Background

The claimant is a national of Pakistan who came to the UK in 2004 and subsequently overstayed. She claimed asylum at some stage and this was rejected in March 2015 and certified as clearly unfounded, meaning that she could not appeal the refusal. She made further submissions in May 2015 but it seems she sent them in rather than going in person to Liverpool as required by the Home Office.

In 2017 she made further submissions again and asked that she be excused from the requirement to go to Liverpool. The Home Office took no action but just kept the submissions on file without rejecting or accepting them.

The claimant’s son was recognised as a refugee in 2018 after a successful appeal in January 2018 which included evidence from the claimant. Shortly after that decision, the claimant was detained when reporting on 9 April 2018. She was released on 23 April 2018 after the Home Office realised that there were outstanding further submissions. The claimant was granted refugee status in February 2021.

Claim for damages

The claimant brought a claim for unlawful detention (actually false imprisonment given she was no longer detained at this time) and a breach of her article 8 right to a private life. The latter related to the period of time it took the Home Office to make a decision on her further submissions, during which she was unable to work, travel, was required to live at one address and had to report monthly.

In relation to her detention, the Recorder noted multiple failings, including that:

In answer to the question: “What alternatives have been considered for detention?”, the answer given was: “Subject has not voluntarily left the UK”. This was not an answer to the question posed, and I concluded that no consideration was given to possible alternatives to detention.

Other parts of the case notes on the detention decision were left completely blank, including the reasons for detention and the section for completion by the detention gatekeeper. In relation to removal being imminent, there was a note stating that the decision maker was waiting to review the Home Office file (which at this point contained two further submissions) to confirm that this was the correct position.

The only reason for treating the claimant as a high risk of absconding appeared to be her imminent removal. She had a good history of previous compliance with reporting conditions.

At the seven day review of detention on 16 April 2018 the claimant’s risk level had been lowered to medium, her further submissions were finally noted and the removal directions that had been set for the next day were cancelled, however detention was maintained until her release on 23 April 2018. The Recorder concluded that there had been numerous breaches of the Home Office’s detention policy and that detention had been unlawful.

On the article 8 point, the Recorder concluded that article 8 was engaged because of the impact of the restrictions on the claimant’s private life. No evidence was provided by the Home Secretary as to whether the restrictions were lawful, necessary and proportionate. The Recorder considered that the burden of proof on the Home Secretary had not been discharged and also awarded damages for this claim.

The claimant succeeded in her claim and was awarded damages of £98,757.04 in total, including aggravated and exemplary damages.

The appeal

The Home Secretary appealed on several grounds. The High Court noted that there was no explanation or justification provided on behalf of the Home Secretary in respect of the second week of the claimant’s detention, and no argument put forward in the appeal that she had been detained lawfully during this time. The court considered that the Home Secretary had therefore accepted that the Recorder was correct on the finding of unlawful detention from 16 to 23 April 2018.

The first ground of appeal by the Home Secretary, challenging the unlawful detention finding for the initial period, included the submission that “there were no or no viable alternatives to detention after the RDs were served because the Claimant had refused voluntary removal”. The High Court said, with reference to several authorities, that “refusal of voluntary removal is relevant and weighs in favour of detention but is not decisive”. The court was critical of the fact that no alternatives to detention had been considered.

The court also said that the risk of absconding had not been properly considered and there were several factors listed in the policy that should have been considered and were in the claimant’s favour. Finally, policy compliant records had not been kept or forms signed by the senior official required to review or make the decisions. The court described the Recorder’s decision as “logical, supported by the evidence and her unchallenged findings of fact” and that the “breaches were not trivial or minor”. The appeal on this ground was rejected.

The Home Secretary also sought to challenge the award of aggravated damages, despite having conceded before the Recorder that there should be such an award. This was dismissed by the High Court, along with a challenge to the amount awarded (£12,000) as no evidence had been provided to support the Home Secretary’s submission that this should be no more than half the award of basic damages (which was £18,000).

The Home Secretary also appealed against the award of exemplary damages in the amount of £12,000 “because such awards are only made where the facts expose an abuse of power which was outrageous, extraordinary and required censure”. The court responded with an important corrective, stating that “The right to liberty was at stake”.

As a side note, all of those working in immigration detention at the Home Office, as well as any Ministers taking these decisions, could do with a bit of reflection as to the importance of this principle and the impact that removing it from a person has.

The court described the number of failures relating to the claimant’s detention as “wholesale” and criticised the Home Secretary’s:

disdainful approach to the seriousness of the issues through its decision to call no decision maker or system function evidence before the Court and to make no effort to discharge the burden of proof on key matters relating to the liberty of the subject. Furthermore, there had been no internal disciplinary action or investigation into the case.

It was considered that the award of exemplary damages was at the lower end of the scale and was described by the court as “modest”. The appeal on this ground was also dismissed.

The award of damages for a breach of article 8 was appealed by the Home Secretary on limitation grounds, as she argued that the claim had been made outside the 12 month deadline. The court said this “ground rather collapsed at the appeal hearing”, given the delay period challenged was from June 2018 to February 2021, when the claimant was granted refugee status, and the claim was issued in February 2021.

The Home Secretary then sought to change her case to say that the claim was barred for the delay earlier than the 12 months before the claim was issued. The court noted that no case law was relied on for this submission, whereas the claimant was able to point to multiple authorities for the position that where there is a continuing breach the limitation period only starts to run where the delay ends. The Home Secretary’s position was described as “bad in law” and this ground of appeal also dismissed.

The Home Secretary also challenged the article 8 award on the grounds that the claimant’s article 8 rights were not engaged by the restrictions placed on her and argued that the court should not impose a timescale in which a decision should be made. Evidence was provided about the number of claims and allocation of resources, with reference to the case law on delay, which as we are all too aware, generally favours the Home Secretary.

However the court said that this was not the problem faced by the Home Secretary here. The issue was the decision that had been made not to serve or rely on any evidence in the case before the Recorder. The court said that the Recorder’s approach was not “illogical or wrong” and her assessment of the delay period, which provided for a six month period as being reasonable to make the decision, was not “irrational or inappropriate on the evidence before her”.

The Home Secretary’s appeal was dismissed in its entirety.

Conclusion

It is all very well for the government to brag about rounding people up and detaining them with a view to removal, but this case is a good demonstration of what is all too often the reality of the situation, where people who have every right to stay in the UK are caught up in these actions. And (as I have said before and will no doubt say again) the reality is that unlawfully detaining people has a financial cost as well as a human one.

The certification of the claimant’s asylum claim in March 2015 seems potentially significant to me, if she had been allowed to appeal at that stage would she have been granted refugee status much earlier? It is obviously impossible to tell for certain from the facts as described here, but I think it is worth keeping in mind as a possibility. Certification and the difficulty in challenging these refusals can leave people in limbo for a lot longer than necessary and is not a power that should be used lightly.

The final point to note is that many people who are detained and removed are unable to access legal advice, and so in that respect the claimant in this case is one of the lucky ones.

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