Gathurah (aka Ramadhan Mohamed) v The Secretary of State for the Home Department

The Secretary of State’s detention decisions were unlawful because they contained material factual errors, but the claimant would probably have remained lawfully detained had the evidence been considered correctly. Damages were therefore nominal. The assessment applies the balance-of-probabilities approach to the counterfactual lawfulness of detention.

A fresh claim requires materially new submissions which, taken with the earlier material, create more than a fanciful prospect of success. Medical evidence that scarring is consistent with torture may carry little weight where the claimant’s account is demonstrably incredible. A breach of a court order does not itself create a private damages action for contempt. Where removal was otherwise lawful, judicial review damages were unavailable.

The claimant sought judicial review of decisions continuing his immigration detention, the refusal on 14 November 2014 to treat further representations as a fresh claim, and his removal to Tanzania on the same day.

The Secretary of State accepted that the detention decisions of 11 July and 13 September 2014 were unlawful because they wrongly stated that the rule 35 body maps showed no physical scarring. She also accepted that removal breached an injunction made by Knowles J, although the claimant was intercepted in Nairobi and returned to the United Kingdom.

The issues were whether more than nominal damages were payable for the detention, whether the further representations were unlawfully rejected, and whether damages were available for removal in breach of the court order.

1. Detention on 11 July 2014. The decision was unlawful because it relied on mistakes about the claimant’s scarring and sleep. Applying R (OM) v SSHD [2011] EWCA Civ 909, the counterfactual question was determined on the balance of probabilities. The claimant’s account of torture had been rejected, his nationality had been found to be Tanzanian, he had previously absconded, and removal was imminent. Correcting the errors would probably not have led to a finding of independent evidence of torture under paragraph 55.10 of the Enforcement Instructions and Guidance 2014. Continued detention would probably have been lawful, so damages were nominal.
2. Detention on 13 September 2014. The second decision contained the same material error. By then appeal rights were exhausted and there was no effective obstacle to removal. The additional period of detention did not make detention unreasonable under the Hardial Singh principles. Damages were again nominal.
3. Fresh claim and continued detention. The Secretary of State was entitled to reject the further representations under paragraph 353 of the Immigration Rules. The medical conclusions depended critically on an account which had been found demonstrably false. The birth certificate had been previously supplied or was insufficiently explained. The limited criticisms of the Sprakab report did not materially undermine it, and the claimant’s article 8 material was not new. The decision was within the range of rational decision-making. Six months’ detention was not unreasonable in the circumstances.
4. Removal in breach of the injunction. The removal was unlawful insofar as it breached the court order. However, contempt of court did not itself give rise to a private action for damages. Since the removal was otherwise within the Secretary of State’s lawful powers and no separate tortious basis had been pleaded, the second condition in section 31(4) of the Senior Courts Act 1981 was not satisfied. No damages could be awarded for the removal. The court’s observations that distress and discomfort might have justified more than nominal damages were obiter.

The detention decisions were unlawful but attracted nominal damages. The fresh-claim refusal and continued detention were lawful. The claimant had no relevant damages claim arising from the removal in breach of the order.