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

Where detention is accepted to be unlawful because required detention reviews were not carried out, substantial damages depend on whether lawful detention would probably have continued. The court must assess that question on the balance of probabilities.

Immigration policy treating persons with independent evidence of torture as suitable for detention only in very exceptional circumstances requires a fact-sensitive assessment. A significant risk of absconding before an imminent removal may satisfy that threshold. Once removal ceases to be imminent, continued detention becomes unlawful unless the Secretary of State reasonably reviews the changed circumstances. A short period may be allowed for that review, but detention cannot simply be maintained without reasons.

The claimant, an Eritrean national, sought damages for immigration detention between 24 August and 21 September 2015. The Secretary of State accepted that the detention was unlawful because detention reviews had not been produced, but contended that only nominal damages were payable because the claimant would have been detained lawfully in any event.

The claimant also alleged that detention breached Article 28 of the Dublin III Regulation (Regulation 604/2013). The central issues were whether the detention breached the Secretary of State’s policy concerning torture victims, when any continued detention became unlawful after removal directions were cancelled, and whether Article 28 created enforceable domestic rights.

1. Unlawful detention and damages. Following Kambadzi v Secretary of State for the Home Department [2011] 1 WLR 1299, the absence of required detention reviews made the detention unlawful. Under OM (Nigeria) v Secretary of State for the Home Department [2011] EWCA Civ 909, the question whether the claimant would have been detained lawfully in any event was decided on the balance of probabilities. The Secretary of State discharged that burden until 8 September 2015.
2. Policy concerning torture victims. Chapter 55.10 of the Enforcement Instructions and Guidance meant that a person supported by independent evidence of torture was normally suitable for detention only in very exceptional circumstances. Applying the purposive and pragmatic approach in R (MD (Angola)) v Secretary of State for the Home Department [2011] EWCA Civ 1238, and the policy-interpretation principles in R (ZS (Afghanistan)) v Secretary of State for the Home Department [2015] EWCA Civ 1137, the significant risk of absconding before an imminent removal was capable of satisfying that threshold. The initial detention was therefore lawful, notwithstanding the missing reviews.
3. Change in circumstances. When removal directions were cancelled on 1 September, removal was no longer imminent. The Secretary of State gave no reason for maintaining detention and made no meaningful attempt to obtain the judicial review papers or consider expedition. The policy’s very exceptional circumstances threshold was no longer met. A reasonable period of seven days was allowed for review and arrangements for release. Detention became unlawful on 8 September, giving rise to substantial damages until release on 21 September.
4. Dublin III. The court followed R (Khaled) (No 2) v Secretary of State for the Home Department [2016] EWHC 1394 (Admin) under judicial comity. Article 28 did not confer a right to challenge detention carried out under existing domestic powers. R (Abdulkadir) v Secretary of State for the Home Department [2016] EWHC 1504 (Admin) was not inconsistent because direct effect had not been argued in that case. The Article 28 ground therefore failed, and would not have altered the outcome in any event.
5. The claimant was entitled to nominal damages for 24 August to 7 September and substantial damages for 8 to 21 September.