SNA v Secretary of State for the Home Department

A detention decision founded on an unlawfully narrow definition of torture is unlawful. The court must assess the decision actually made; it cannot retrospectively substitute a lawful decision that might have been made. However, substantial damages do not follow automatically. The detaining authority may avoid substantial damages by proving, on the balance of probabilities, that it could lawfully have detained the claimant and would have done so, applying the Wednesbury standard and the Hardial Singh principles. Where that test is satisfied, the claimant is entitled only to nominal damages.

The claimant, an Egyptian national and immigration overstayer, was detained pending removal. A rule 35 report recorded scars which might have supported his account of persecution and torture following conversion from Islam to Jehovah’s Witnesses. The decision to maintain detention applied the United Nations Convention against Torture definition, which had subsequently been held unlawful in Medical Justice and others v Secretary of State for the Home Department [2017] EWHC 2461.

The claimant sought a declaration of unlawful detention and substantial damages. The Secretary of State accepted that the decision-maker had used the restrictive definition but argued that the same detention would lawfully have continued and that only nominal damages were recoverable. The issues were whether the public law error vitiated the detention and, if so, the proper measure of damages.

1. Unlawful detention. The decision of 14 September 2016 expressly relied on the United Nations Convention against Torture definition and concluded that the claimant was not a victim of torture because state involvement had not been shown. That was a public law error. The broader definition identified in EO and Others v Secretary of State for the Home Department [2013] EWHC 1236, and preferred in Medical Justice and others v Secretary of State for the Home Department [2017] EWHC 2461, could have covered the claimant’s account. The detention from 14 September until release on 28 September 2016 was therefore unlawful (paras [22]–[24]).
2. No retrospective rewriting. It was impermissible to say that the error did not matter because the claimant could have been detained lawfully. The decision had to be assessed as made. The approach in VC v Secretary of State for the Home Department [2018] EWCA Civ 57, applying Lumba v Secretary of State for the Home Department [2012] 1 AC 245, was followed (paras [23]–[24]).
3. Damages. The Secretary of State had to prove on the balance of probabilities that, had the correct definition been applied, detention could lawfully have been continued and would in fact have been continued. The counterfactual decision had to satisfy the Wednesbury standard and the Hardial Singh principles. The evidence established that the claimant’s immigration history, concerns about absconding, the apparent weakness of the new claim and the expectation of early removal would have led to continued detention for a reasonably short period (paras [26]–[32]).
4. The claimant was consequently entitled only to nominal damages. No order for costs was made, and permission to appeal was refused (paras [33]–[37]).

The judgment describes earlier procedural steps but was a first-instance determination in the Administrative Court.

• Administrative Court: The claimant was granted limited permission to challenge the adults at risk policy. His claim was stayed pending lead claims determined by Ouseley J in Medical Justice and others v Secretary of State for the Home Department [2017] EWHC 2461. The present court then declared the detention unlawful, awarded nominal damages, made no order as to costs and refused permission to appeal.