YOUSF SRDAR ABULBAKR (R on the application of) v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Damages for unlawful immigration detention must be assessed globally and by reference to the claimant’s actual harm. The assessment is fact-sensitive, avoids a rigid daily rate, and recognises that the impact of detention commonly diminishes over time. Aggravated damages require conduct that materially aggravates the injury, while exemplary damages require oppressive, arbitrary or unconstitutional conduct, or other conduct meeting the applicable exceptional threshold. Careless administrative errors and dilatoriness may establish unlawfulness without satisfying either threshold. A claimant may substantially succeed in judicial review by obtaining a declaration of unlawfulness even where release is not ordered. Costs should reflect that substantive success, subject to any procedural default such as late amendment.

The claim followed a substantive judgment in which the court found that the claimant, a foreign national offender, had been unlawfully detained from 8 June to 17 July 2020. The unlawful detention resulted principally from avoidable errors and delay in arranging suitable accommodation after bail had been granted in principle. The COVID-19 pandemic and the suspension of flights were relevant to the assessment.

The parties could not agree the quantum of damages or costs. The claimant sought basic, aggravated and exemplary damages, relying principally on Muuse and, alternatively, Diop. The Secretary of State contended that only basic damages were justified. The issues were the appropriate global award, whether aggravated or exemplary damages should be awarded, and the proper costs order.

1. Quantum. The assessment of damages for false imprisonment is sensitive to the particular facts and the harm suffered. It must not be mechanical or based on a fixed sum for each day. A global approach is required, with the element attributable to continuing detention generally tapering because the initial shock of detention commonly attracts greater compensation. The court applied the principles summarised in MK (Algeria).
2. Aggravated and exemplary damages. The claimant’s detention involved a series of careless mistakes, failures to check relevant circumstances and an unsatisfactory approach to the presumption of liberty. Those matters established serious administrative failure but did not amount to the egregious conduct in Muuse. They did not show the lack of bona fides, oppressive conduct or misuse of process required for aggravated damages, nor the outrageous conduct required for exemplary damages. The claim for both additional heads was rejected.
3. Global compensatory award. The court took account of the claimant’s detention on the prison estate rather than in immigration detention and the additional stress and restrictions caused by COVID-19 conditions. Having regard to Diop and Johnson as comparators, it awarded £17,500 as a global basic award for the 40 days of unlawful detention. This comprised a foundation figure of £15,500 and a £2,000 uplift for the particular circumstances.
4. Costs. The claimant had achieved the essential practical result by obtaining a declaration that detention had been unlawful. The absence of an order for release did not make him successful only in part, given the unusual change in circumstances and the fact that the unlawfulness had been vigorously contested. Applying the approach in R (Parveen), RL and M, the claimant was entitled to costs, but forfeited 5 per cent because of the late amendment. That 5 per cent was not awarded to the defendant.

The judgment determined damages and costs following the court’s substantive judgment of 31 July 2020 in the same judicial review proceedings. The citation of that earlier judgment is not stated in the judgment.