The High Court has ruled that a claimant is entitled to extra unlawful detention damages for frustration and anxiety where the Home Office fails to provide a release address. The guidance on this issue provided by R (Diop) v Secretary of State for the Home Department [2018] EWHC 3420 (Admin) is especially important in light of the changes made to the system of bail accommodation since the Immigration Act 2016 came into force. The Home Office has refused to set up an application system for applying for accommodation under Schedule 10 of the Act, which has led to more detainees resorting to applications for bail in principle from the First-tier Tribunal and lengthy waiting periods for release after bail has been granted.

This decision means that the Home Office will have to pay additional compensation if that delay is unlawful.

Month-long delay between grant of bail and provision of accommodation

Mr Diop is a Senegalese national who was detained pending deportation after several convictions for domestic abuse. He applied for bail accommodation in October 2016, but by the time he was granted bail in principle on 10 November 2017 the Home Office had not made a decision about his application. It took until 7 December 2018 to find accommodation for him. In an earlier decision the High Court ruled that the delay in providing accommodation was unlawful and therefore detention was unlawful from the grant of bail in principle until Mr Diop was released.

Mr Diop sought damages for being deprived of his liberty and the injury to his feelings caused by the delay in releasing him after he was granted bail in principle. He reported being particularly upset after discovering in disclosure that the Home Office had made no steps to arrange accommodation for him until after a second First-tier Tribunal hearing to extend the grant of bail in principle. The Home Office resisted paying extra damages, arguing that the delay was caused by Mr Diop’s history of violence which meant he had to be found special, self-contained accommodation.

Frustration at delay in release relevant to compensation

In a lengthy judgment, John Howell QC, sitting as a deputy High Court judge, agreed with Mr Diop. He held that the frustration felt by Mr Diop at the delay in providing a release address was justified and that it was relevant to the issue of compensation:

Although the amount of compensation for unlawful detention broadly attributable to the increasing passage of time normally falls to be tapered or placed on a reducing scale and although the Claimant suffered no initial shock, in this case the injury to his feelings as his unlawful detention continued, his increasing frustration, anger and anxiety about his release and when he might be able to see his children, increased with the length of his unlawful detention until he was told that accommodation had been found on December 5th 2017. That must be taken into account when considering the significance of the length of his unlawful detention in the assessment of the amount of compensation to which he is entitled.

The judge also ruled that the anger felt by Mr Diop when he discovered that for most of the period he was unlawfully detained the Home Office were taking no action to find accommodation for him was relevant, even though it occurred after Mr Diop was released:

In my judgment such anger is a result of the manner in which the Defendant dealt with the Claimant’s continued unlawful detention. Such anger is relevant, and not only justified, whether or not accommodation would have been found, and the Claimant would have been released, earlier had more been done. Although that reaction is one that occurred after his unlawful detention had ended, it was a consequence of the manner in which the Defendant dealt with his continued detention. It is part of the injury to his feelings caused by his continued unlawful detention and the manner in which it was dealt with for which in my judgment he is entitled to be compensated.

Finally, John Howell QC rejected the Home Office argument on the grounds that the extent to which Mr Diop’s previous conduct made it difficult to find accommodation for him was a factor which affected the lawfulness of the delay and had already been considered by the court in finding that the delay was unlawful.

Not clear how much extra damages awarded

It is impossible to identify the exact amount by which this approach increased the level of damages to be paid to Mr Diop. John Howell QC awarded a single figure for both basic unlawful damages and the injury to Mr Diop’s feelings because of a principled objection to distinguishing between basic and aggravated damages.

The judge did say that the injury to loss of feelings would be proportionate to damages paid in cases of personal injury. In total he awarded £9,000 for 28 days’ unlawful detention, so we can infer that the additional damages are relatively modest.

Nonetheless, this is an important step towards acknowledgement that the Home Office is abusing its power by failing to set up an adequate system for detainees to obtain a release address. Practitioners will be familiar with the frustration felt by Mr Diop. The extra period of detention after the grant of bail in principle was pointless, it had nothing to do with removal, and it inflicted gratuitous harm on Mr Diop. It is satisfying that the High Court has recognised this in damages, but now we need it to condemn the system and order the Home Office to fix it.