Mooge, R (On the Application Of) v Secretary of State for the Home Department

Immigration detention is unlawful where the Secretary of State lacks a lawful basis for detention, including where detention is maintained through a mistaken identity or mistaken immigration history. In judicial review proceedings, costs generally follow the event. Indemnity costs remain exceptional and require conduct so grave and inappropriate that the exceptional order is justified; dissatisfaction with the defendant’s conduct, without more, is insufficient.

The claimant, a Somali national and recognised refugee, challenged his detention under immigration powers from 25 August 2017 to 7 February 2018. The evidence included repeated references to another person’s identity and immigration history. The claim was issued under the urgent procedure and came before the Administrative Court as a rolled-up hearing. The Secretary of State made no direct submissions on liability. The issues were whether the detention was unlawful and what costs order should follow.

1. Unlawful detention. The claimant was unlawfully detained from 25 August 2017 to 7 February 2018. The court relied on the documentary evidence and the absence of any direct submission by the Secretary of State on liability. Permission to move for judicial review was granted and a declaration was made.
2. Costs. Costs were awarded to the claimant to follow the event. The court rejected the Secretary of State’s invitation to leave costs to be assessed by the county court judge.
3. Indemnity costs. Indemnity costs are a very rare order in judicial review proceedings. Although the defendant’s treatment of the case was not entirely satisfactory, nothing sufficiently grave and inappropriate had been identified to justify that exceptional course. Costs were therefore awarded on the standard basis.
4. The damages claim was adjourned for determination in the county court.

The claim was issued under the urgent application procedure on 22 January 2018. Mrs Justice Laing directed that it proceed to a rolled-up hearing. The Administrative Court granted permission for judicial review, declared the detention unlawful, awarded standard-basis costs to the claimant, and adjourned the damages claim to the county court.