Tarakhil v The Home Office

An immigration detainee may be detained only where removal can be effected within a reasonable time and the Secretary of State acts with reasonable diligence and expedition. Detention must be used sparingly, for the shortest necessary period, and all reasonable alternatives must be considered. A pending suspensive appeal is material to whether continued detention is justified. Each decision must address the relevant facts, policy constraints and realistic removal timetable, and must give accurate and adequate reasons.

The claimant, an Afghan national, claimed damages from the Home Office for false imprisonment, wrongful detention, psychiatric injury and aggravated damages. He had been detained for 21 days while his immigration appeal process continued.

He was a significant prosecution witness in a murder trial and remained subject to Operation Barnham, under which he was not to be detained or removed without police agreement. The Home Office detained him with a view to removal on a charter flight, although he was not appeal rights exhausted and could not realistically be removed on that flight. The central issues were whether the detention and its continuation were lawful, and the appropriate damages.

1. Detention unlawful from the outset. The court applied the principles explained in R(Lumba) v SSHD [2011] UKSC 12, including that detention for removal must last no longer than reasonable, must not continue where removal cannot be effected within a reasonable time, and must be pursued with reasonable diligence and expedition.
2. The initial decision failed to consider the claimant’s continuing Operation Barnham status, the absence of police approval, his non-appeal-rights-exhausted status, and the lack of any realistic prospect of removal on the proposed charter flight. It wrongly relied on an alleged previous failure or refusal to leave, failed to consider temporary release, and gave inadequate reasons.
3. The later reviews were also unlawful. They failed to engage with the fact that the claimant could not be placed on the proposed flight and did not adequately consider whether continued detention remained necessary and reasonable. The claimant should also have been released after the Upper Tribunal granted permission to appeal, rather than being detained for a further five days awaiting transmission of the decision.
4. The claimant was entitled to damages for the whole 21-day period. The court awarded £14,250 for unlawful detention and false imprisonment, £3,000 for psychiatric injury and £2,000 aggravated damages. The total was £19,250, subject to a 10% uplift under Simmons v Castle Practice Note [2012] EWCA Civ 1288, [2013] 1 WLR 1239.