NAB, R (On the Application Of) v Secretary of State for the Home Department (Rev 1)

Damages for unlawful immigration detention are compensatory and fact-sensitive. Inactivity and administrative drift do not, without more, amount to the oppressive, arbitrary or unconstitutional governmental conduct required for exemplary damages. Aggravated damages require aggravating features in the manner of the illegality which add injury to insult. A separate head of vindicatory damages is not established in English law on the reasoning considered. A detainee’s refusal to co-operate may be relevant to the assessment of compensation, but it does not necessarily constitute contributory negligence or failure to mitigate where treating it as extinguishing loss would undermine the finding that detention was unlawful.

The claimant had been detained under the immigration legislation while arrangements were made for his deportation to Iran. In the substantive judicial review, the court found that detention was initially lawful but became unlawful from 14 September 2009 because the Secretary of State’s inactivity meant that there was no realistic prospect of removal and no feasible or practicable removal plan. The present judgment determined damages for 82 days of unlawful detention.

The issues were whether exemplary, aggravated or vindicatory damages were available, whether the claimant’s refusal to sign Iranian waiver documents amounted to contributory negligence or failure to mitigate, and what compensatory award was appropriate.

1. The claim for damages arising from unlawful detention succeeded in part. The court awarded £6,150, calculated at £75 per day for 82 days. The parties were invited to agree the consequential order.

2. Exemplary damages were refused. The Secretary of State’s fault was inactivity and drift. There was no bad faith, malice, fraud, insolence or cruelty, and the conduct did not meet the category of oppressive, arbitrary or unconstitutional governmental action identified in Rookes v Barnard and approved in Broome v Cassell.

3. Aggravated damages were also refused. Applying the guidance in Thompson v Commissioner of Police for the Metropolis, the continuation of detention involved no aggravation of the illegality and added no injury to insult.

4. The court was not persuaded that English law recognised vindicatory damages as a distinct head of compensation absent a special statutory basis. The discussion of Lumba v Secretary of State for the Home Department supported the conclusion that conventional compensatory damages may have a vindicatory effect, but did not establish a separate claim. The nominal-damages reasoning in Lumba did not apply because the unlawful detention here resulted from failure to recognise that all realistic removal options had been exhausted.

5. The claimant’s persistent refusal to sign the Iranian documents did not amount to contributory negligence on these facts. It was a known and continuing condition confronting the Secretary of State; treating it as contribution would imply that the unlawful detention remained partly justified. The court likewise rejected the argument that the refusal extinguished the loss through failure to mitigate. The refusal remained relevant to the amount of compensation, however.

6. Compensation depended on the particular facts. The unlawful period caused no first shock or disruption of ordinary community life, followed earlier lawful detention, and produced no identifiable additional mental-health impact. The claimant’s choice of detention in the United Kingdom rather than freedom in Iran did not affect the illegality, but materially reduced the appropriate award.

The judgment states that the substantive judicial review was determined earlier by the same court in [2010] EWHC 3137 (Admin). This judgment determined the consequential damages only.