ZA (Pakistan), R (On the Application Of) v The Secretary of State for the Home Department

A detainee whose immigration detention is unlawful because of a procedural breach receives only nominal damages where the Secretary of State proves that lawful detention would have continued in any event. That conclusion may be established by inferences from the evidence. Direct evidence addressing the hypothetical decision is not invariably required.

When assessing whether removal remains possible within a reasonable period, the Secretary of State need not assume that a recently made asylum claim will fail and that every possible appeal and judicial review will follow. The claim’s apparent strength, likely processing time, immigration history and risk of absconding may be considered together.

The appellant, a Pakistani national and overstayer, was detained pending removal. After he claimed asylum on grounds relating to his sexual identity, he remained detained until judicial review proceedings were commenced.

The High Court, in [2018] EWHC 183 (Admin), held that failures to provide medical examinations required by rule 34 of the Detention Centre Rules 2001 made his detention unlawful from 24 January to 24 February 2016. It awarded £1 nominal damages because he would otherwise have remained detained.

The appeal concerned compensatory damages, medical assessment delays, the policy governing short-term holding facilities, compliance with detention policies after the asylum claim, and the Hardial Singh principles.

1. Appeal dismissed unanimously. The High Court was entitled to find that compliance with rule 34 of the Detention Centre Rules 2001 would not have led to the appellant’s earlier release. Although the burden of proving the hypothetical lawful outcome rested on the Secretary of State, the court could draw the necessary inference from the contemporaneous evidence. Three health screenings and a later medical consultation recorded no mental-health concerns. A psychiatric assessment prepared about 18 months later provided little assistance concerning what a general practitioner would have identified during detention. Compensatory damages were therefore unavailable and the award of nominal damages stood: per McCombe LJ, with whom Dingemans and Leggatt LJJ agreed ([39]–[45]).

2. Rule 35 did not give a detainee an immediate right to a report. It required a medical practitioner to report where the relevant medical judgment was made. Given the evidence and the applicable working-day response period, the failure to arrange an assessment between the appellant’s request and his release five days later did not render detention unlawful ([24]–[30]).

3. The court declined to decide whether the applicable short-term holding facility policy required a doctor’s appointment within 24 hours. Confusion over the policy version and the conclusion that any additional damages would remain nominal made the issue academic ([10]–[23]).

4. The detention reviews complied with the relevant policies. The asylum claim was exceptionally late, appeared potentially weak after screening, and had to be balanced against the appellant’s prolonged non-compliance with immigration law and substantial risk of absconding. The Secretary of State was entitled to regard removal as achievable within a reasonable time ([46]–[62]).

5. The third Hardial Singh principle was not infringed. Before the substantive interview, the Secretary of State was not required to assume that the claim would be refused and that every possible appeal and judicial review would follow. Nothing apparent before shortly before release indicated that removal could not be achieved within a reasonable period ([63]–[67]).

6. Dingemans LJ added, with Leggatt LJ agreeing, that a claim seeking damages alone cannot remain a judicial review claim under rule 54.3(2) of the Civil Procedure Rules 1998. Once continuing detention ceases to be at issue, parties should consider promptly whether a damages claim should be transferred to the Queen’s Bench Division or County Court ([68]–[75]).

• Court of Appeal (Civil Division): In [2020] EWCA Civ 146, unanimously dismissed the appellant’s appeal and affirmed the award of nominal damages.
• High Court, Administrative Court: In [2018] EWHC 183 (Admin), declared the detention between 24 January and 24 February 2016 unlawful because of breaches of rule 34 of the Detention Centre Rules 2001, awarded £1 nominal damages and otherwise dismissed the claim.