Mehari, R (on the application of) v Secretary of State for the Home Department

Detention pending removal is lawful only while it serves a permitted statutory purpose and remains reasonably necessary for removal. Where there are reasonable grounds to believe that a person may be removed to a country of nationality or admission, detention may continue while removal directions are considered, provided the Hardial Singh limitations are satisfied.

Damages for unlawful detention should be assessed globally. Published figures are guidelines, not a mechanistic tariff. The award must reflect the circumstances of the detention and maintain proportionality with awards in personal injury cases.

The claimant challenged removal directions to Eritrea and the legality of her detention. The defendant accepted that the directions to Eritrea were unlawful. The remaining issues were whether detention from 29 May to 31 July 2008 was lawful and the damages payable for detention from 22 to 29 May 2008.

The claimant had an apparently valid Ethiopian passport and had previously lived, travelled and represented herself as Ethiopian. The court considered whether the defendant reasonably regarded Ethiopia as a country of nationality or a country to which the claimant would be admitted, and whether the detention complied with the statutory scheme and the Hardial Singh principles.

1. Detention from 29 May to 31 July 2008. The claim for unlawful detention during this period failed. Under Immigration and Asylum Act 1999, section 10(1)(a), the claimant was liable to removal because she had overstayed her leave. By section 10(7), the relevant provisions of Schedule 2 to the Immigration Act 1971 applied. Paragraph 16(2) of Schedule 2 authorised detention pending a decision whether to give removal directions or removal pursuant to them.
2. The Secretary of State had reasonable grounds to regard the claimant as removable to Ethiopia. She possessed a valid Ethiopian passport, had been born and had lived there, and there had been no confirmation from the Ethiopian authorities that she was no longer Ethiopian. The alleged difficulties on return had already been rejected by the Immigration Judge, and nothing before the court made that conclusion unreasonable.
3. The detention complied with the Hardial Singh limitations. It was pending a decision concerning removal, removal to Ethiopia was not shown to be impossible within a reasonable period, and the continuing judicial review proceedings explained why removal steps had not been taken.
4. Damages. The detention from 22 to 29 May 2008 was unlawful. The guidance in Thompson v Hsu and Commissioner of Police of the Metropolis [1998] QB 498 provided a starting point, but the figures were not to be applied mechanically. Following R v Governor of Brockhill Prisoner, ex parte Evans (2) [1999] 1 QB 1043 and R (Beecroft) v Secretary of State for the Home Department [2008] EWHC 3189 (Admin), the court adopted a global assessment, with the pro rata rate generally reducing as detention lengthens.
5. The claimant was awarded £4,000 for the seven-day period of unlawful detention. The court recorded that the award reflected her good character and the distress caused by detention.

The judgment itself does not state that it was an appeal. It records earlier immigration and reconsideration decisions, including dismissal of the claimant’s appeal by the Asylum and Immigration Tribunal and refusal of reconsideration by the High Court.