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

When immigration detention separates a parent from children, the children’s best interests are a primary consideration. They are not determinative and may be outweighed by sufficiently strong countervailing considerations, including a substantial risk of absconding which cannot be managed by less restrictive measures.

A public law breach renders detention unlawful where it is capable of affecting the decision to detain. For compensatory damages, however, the Secretary of State need only prove on the balance of probabilities that lawful detention would have occurred had the obligation been fulfilled. Detention need not have been inevitable. Where lawful detention would and should have continued, only nominal damages are recoverable.

The appellant was detained under the Immigration Act 1971 for 26 months after completing a prison sentence. His detention separated him from his wife and three young sons. He sought judicial review, alleging breaches of departmental policy, section 55 of the Borders, Citizenship and Immigration Act 2009 and article 8 of the European Convention on Human Rights.

Beatson J held in [2012] EWHC 878 (Admin) that the initial detention was unlawful because the Border Agency had not consulted the Office of the Children’s Champion. He nevertheless awarded only nominal damages because the appellant could and would have been detained lawfully.

The appellant contended that the failure properly to treat his children’s best interests as a primary consideration infected the whole detention. He also argued that more than nominal damages were required unless detention would have been inevitable. The central issues were whether continued detention was justified under the Hardial Singh principles and whether the public law breaches caused compensable loss.

1. Appeal dismissed. The children’s best interests undoubtedly favoured releasing their father subject to restrictions. Those interests were a primary consideration, but they were not determinative. The appellant’s immigration history, repeated use of false documents, resistance to deportation and failure to co-operate with travel-document procedures established a very substantial risk of absconding. That risk could not have been adequately controlled by curfew, electronic monitoring or another lesser restriction. Detention therefore justified the serious detriment caused to the children: per Moses LJ, with whom Longmore and Ward LJJ agreed.

2. The Border Agency’s initial failure to consult the Office of the Children’s Champion rendered the early detention unlawful. A public law breach is material to lawfulness if it is capable of affecting the decision to detain; the claimant need not prove that compliance would have produced a different result. The later consultation was defective because it sought advice about deportation rather than continued detention and omitted relevant information about the children. Those defects did not, however, alter the advice or the local authority’s response.

3. The detention reviews showed conscientious and evolving consideration of the justification for detention. Their differing conclusions did not establish a failure of independent assessment. A real prospect of deportation remained until emergency travel documents became unobtainable. The appellant’s unsuccessful asylum and human rights representations did not remove that prospect, and minimal weight could be given to hopeless challenges when assessing a reasonable detention period.

4. Causation governed damages. The Secretary of State did not have to prove that detention was inevitable. It was sufficient to prove on the balance of probabilities that the appellant would have been detained if all public law obligations had been fulfilled. Because the absconding risk meant that the appellant would and should have remained detained, the unlawful exercise of the power caused no compensable loss. Only nominal damages were recoverable, even if the January 2010 consultation defects also amounted to a breach of policy.

1. Court of Appeal (Civil Division): By [2013] EWCA Civ 366, unanimously dismissed the appellant’s appeal and upheld the award of nominal damages.
2. High Court, Administrative Court: Beatson J held in [2012] EWHC 878 (Admin) that detention was unlawful until 11 January 2010 because departmental consultation policy had not been followed. He held that continued detention was otherwise justified and that only nominal damages were recoverable.