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

Where public authorities unlawfully remove persons from the United Kingdom, the court may order their return as restitutive relief. The discretion must be exercised by considering the authority’s conduct, delay, the impact of the wrong, the utility of the order and the interests of affected children. Quashing the removal decision does not necessarily provide an adequate remedy.

Damages for unlawful detention should follow the compensatory principles and tariff guidance identified in Thompson v Commissioner of the Police of the Metropolis, including basic and, where justified, aggravated damages.

The claimants, a family of asylum seekers, were detained and removed to Germany in January 2006. The Secretary of State later accepted that the detention and removal were unlawful and that Articles 5 and 8 of the European Convention on Human Rights had been breached. The claim was remitted to the Administrative Court after an earlier judgment was set aside on appeal because of a misunderstanding of the factual background.

The remaining issues were remedial: whether the family should be returned to the United Kingdom, and the appropriate damages for unlawful detention and loss of property. The court declined to determine disputed factual allegations concerning the removal or the claim of misfeasance in public office.

1. Return as restitutive relief. The court had jurisdiction, in an appropriate case, to order the Secretary of State to return persons unlawfully removed from the United Kingdom. Restitutio in integrum is a recognised remedial principle, and the absence of an authority precisely on unlawful immigration removal did not prevent its application.
2. The return order was discretionary. Relevant considerations included the Secretary of State’s conduct before and during removal, failure to facilitate access to legal advice, failure to serve the relevant decisions, absence of a pastoral visit, delay in conceding unlawfulness, the delay in the proceedings, the utility of return, the family’s position in Germany and the best interests and likely disruption of the children. The Secretary of State’s conduct and the cumulative effect of delay tipped the balance in favour of return.
3. The order was directed to the Secretary of State but was not to take immediate effect. The family were to have time to obtain advice and decide whether to return. The court did not determine what immigration status or leave should be granted after return.
4. The accepted unlawfulness established breaches of Articles 5 and 8. The court did not determine the disputed Article 3 issue because resolution of it was unnecessary. The contested circumstances of detention and removal were also unsuitable for determination in judicial review proceedings without oral evidence.
5. Applying Thompson v Commissioner of the Police of the Metropolis, the court awarded basic and aggravated damages for the period of unlawful detention until the family’s arrival in Germany. It awarded £4,500 each to the father and son and approximately £6,000 each to the mother and daughters. It also ordered approximately £10,000 special damages for lost property, subject to a 28-day opportunity to challenge the amount or particular items. Costs were payable by the Secretary of State.

1. Court of Appeal: An appeal from an earlier Administrative Court judgment was compromised in July 2010. The appeal was allowed by agreement and the earlier order was set aside because the judge had misunderstood the factual matrix.
2. High Court (Administrative Court): The matter was remitted for determination of further relief. The present court ordered the family’s return and awarded damages.