BA & Ors v Secretary of State for the Home Department

Whether a later damages claim is an abuse of process after unsuccessful judicial review requires a broad, merits-based assessment of all the circumstances. Where judicial review challenges removal directions and detention legality is closely connected with that challenge, both issues should ordinarily be raised in the judicial review proceedings. Relevant considerations include orderly case management, evidence, legal-aid arrangements, child claimants, culpability and the burden on the opposing party. Separate proceedings may nevertheless be permissible in an unusual case. A claimant who omits the detention issue without a material change of circumstances risks having a later damages claim dismissed as abusive.

BA and her three children, all from Cameroon, were detained pending removal. BA first sought judicial review of the removal decision. A second judicial review application, issued after renewed removal directions and relying principally on medical concerns, also briefly referred to the unlawfulness of detention. Permission was refused on the papers, the application was not renewed, and the family was released.

BA and the children then issued a Queen’s Bench Division claim for damages for false imprisonment. The Deputy Master struck it out as an abuse of process. HH Judge Anthony Thornton QC allowed the claimants’ appeal in a judgment dated 8 June 2011, citing ID v Home Office [2006] 1 WLR 1003. The Secretary of State appealed. The central issue was whether the later private-law claim was abusive under the broad merits-based approach in Johnson v Gore Wood.

1. Appeal dismissed. The court applied the broad, merits-based approach in Johnson v Gore Wood [2002] 2 AC 1, taking account of the public and private interests and all the circumstances.
2. Where a detainee challenges removal directions by judicial review and alleges that detention is unlawful, the issues are closely related. The Administrative Court is best placed to determine the immigration issues, while damages and quantum can ordinarily be dealt with in the Queen’s Bench Division or a County Court. A detention claim should therefore ordinarily be brought in the judicial review proceedings.
3. This approach promotes determination of removal and detention issues in one set of proceedings, avoids unnecessary burdens on the Secretary of State and supports orderly case management under the Civil Procedure Rules. It is not an absolute rule. Lack of time to obtain evidence may be material. A refusal of permission or determination will not usually create issue estoppel, although re-litigation will generally be impermissible.
4. The separate damages proceedings were not abusive on these unusual facts. Legal-aid franchising arrangements had materially contributed to the division of the claims between different firms and weighed strongly against abuse. The children’s position had not been properly safeguarded. The second application was principally directed to removal and had been issued hastily; the detention ground was brief. The claimants had not behaved culpably, and the separate proceedings caused no unjust burden.
5. For the future, a detainee challenging removal directions should raise any detention claim in the judicial review or risk a later damages claim failing as abusive where circumstances have not changed. Lord Justice Davis additionally observed that pursuing damages for past unlawful detention does not itself require a stay of removal after an adverse decision on removal.

• Court of Appeal (Civil Division): appeal by the Secretary of State dismissed.
• Queen’s Bench Division, HH Judge Anthony Thornton QC: appeal from the Deputy Master allowed in a judgment dated 8 June 2011.
• Queen’s Bench Division, Deputy Master Rose: claim for false imprisonment struck out on 19 August 2010.