The Secretary of State for the Home Department v Nadra Tabasam Almas

Immigration detention does not follow automatically from the service of removal directions or refusal of voluntary departure. The Secretary of State must apply the presumption in favour of immigration bail, consider reasonable alternatives, assess the individual risk of absconding, and comply with the published detention policy. Serious breaches of those requirements may make detention unlawful.

For damages, causation is considered separately by asking what would probably have happened if the policy had been properly applied. Restrictions preventing work, travel and ordinary social and family life may engage Article 8 where their cumulative impact is sufficiently serious. A continuing interference is timed from the date it ends for the purposes of section 7(5)(a) of the Human Rights Act 1998.

The claimant brought claims for unlawful detention and breach of Article 8 arising from her detention pending removal and the later delay in deciding her fresh asylum claim. The Recorder allowed both claims, awarded damages of £98,757.04, ordered indemnity costs and directed a payment on account of costs.

The Secretary of State appealed on six grounds, challenging liability, damages, the Article 8 claim, limitation, the grant of damages instead of a declaration, and costs. Permission was granted on restricted grounds. The High Court therefore reviewed whether the Recorder’s decision was wrong or unjust because of a serious procedural or other irregularity.

1. Appeal dismissed. The Recorder’s findings of fact were unchallenged and the appeal was a review under CPR r. 52.21, not a rehearing. The high threshold for appellate interference with findings of fact and case-management decisions was not met.
2. The service of removal directions did not create automatic detention. The presumption in favour of immigration bail continued to apply. The Secretary of State had to consider reasonable alternatives, assess the claimant’s individual circumstances and risk of absconding, and justify detention as necessary and proportionate. Refusal of voluntary removal was relevant but not decisive.
3. The Recorder was entitled to find detention unlawful because the Secretary of State failed to consider alternatives, gave unexplained and inconsistent risk assessments, failed to obtain the required senior authorisation, and failed to maintain proper records. Those were substantial policy breaches, not minor technical defects.
4. Under Lumba, breach of policy goes to liability where sufficiently serious, while the question whether the claimant would have been detained in any event goes to damages. Applying the balance of probabilities, the Secretary of State failed to prove that lawful compliance would still have resulted in detention.
5. The awards for basic, aggravated and exemplary damages were within the permissible evaluative range. Aggravated damages are compensatory and distinct from exemplary damages. Exemplary damages may be awarded for an outrageous, oppressive or arbitrary tortious abuse of governmental power requiring punishment and deterrence.
6. The Article 8 claim was not time-barred. A continuing course of conduct is treated as ending when the continuing interference ceases under section 7(5)(a) of the Human Rights Act 1998. Restrictions which wholly prevented work and substantially restricted travel, social life, family life and self-respect were sufficiently serious to engage Article 8. The burden then lay on the Secretary of State to establish that the interference was lawful, necessary and proportionate.
7. The unexplained delay of approximately two years and nine months was disproportionate on the evidence. The Secretary of State had served no evidence explaining the system, resources or delay. The Recorder’s six-month period before breach was not irrational or a general rule for other cases.
8. The declaration and costs challenges failed. The payment on account was not demonstrably wrong.

• High Court (King’s Bench Division): appeal against the Recorder’s judgment dismissed on all grounds.
• Recorder McNeill: claim for unlawful detention and Article 8 damages allowed; damages of £98,757.04 awarded, with indemnity costs and £30,000 on account of costs.