Sapkota, R (on the application of) v Secretary of State for the Home Department

This is a claim for damages for false imprisonment, arising from the Defendant’s decisions to curtail the Claimant’s leave to remain and to detain him, made on 9 November 2015. The Claimant was in immigration detention between 9 November 2015 and 14 December 2015, when he was released on bail: a period of 36 days.

Following the hearing of the Claimant’s claim for judicial review, the Administrative Court (Richard Clayton QC, sitting as a Deputy High Court Judge) decided on 20 December 2016 that the decisions to curtail the Claimant’s leave to remain and to detain him had been procedurally unfair, and quashed the decision curtailing leave to remain. The Judge gave directions for a further hearing, including a summary of the issues to be determined, and directions for the exchange of evidence.

The issues for this hearing as originally framed in the Judge’s order included both “the lawfulness of the Claimant’s detention” and the quantum of damages for false imprisonment. However, counsel for the Defendant, Ms Walker, indicated at the hearing that she did not seek to press the argument that the detention had been lawful, in the light of the unequivocal finding made by the Judge at paragraph 60 of the judgment that the detention was unlawful, because of the absence of a fair procedure. She was undoubtedly right to do so.

In these circumstances, the questions before me are (1) whether any substantial damages should be awarded for false imprisonment, or merely nominal damages, on the basis of the principles set out in Lumba v Secretary of State for the Home Department [2011] UKSC 12, and, (2) if so, the quantum of those damages, including the question whether any award of aggravated damages should be made.

Two further matters arose at the outset of the hearing before me, namely:

I refused the application to adduce expert evidence, for reasons which I gave orally at the hearing. In essence, the application was made much too late, to the potential prejudice of the Defendant, and, in any event, the evidence sought to be adduced was unlikely to be of assistance, given its substantial defects.

Ms Walker indicated at one stage that she might seek to apply to cross-examine the Claimant. However, she ultimately elected not to make any such application. As a result, the Claimant’s written evidence contained in his witness statement dated 11 July 2017 stands unchallenged, both as to the events which occurred when he was detained, and as to his experiences in detention and their effects on him. Moreover, no factual evidence was adduced by the Defendant giving any different account of events from that contained in the Claimant’s witness statement.

This judgment should be read together with the judgment of Mr Clayton, which sets out the factual background leading to the Claimant’s detention in detail. I am of course bound by the findings of fact contained in that judgment.

In summary, the Claimant is a Nepalese national, who entered the United Kingdom in 2009 as a student. By 2015, he had leave to remain as a Tier 4 (General Student) valid until 28 December 2015.

On 3 June 2015 he became engaged to be married to a Portuguese national named Maria Fernandes, who was exercising Treaty rights in the UK.

On 9 November 2015, the Claimant and Ms Fernandes were interviewed by immigration officers who concluded that the proposed marriage would be both a sham and bigamous. The Claimant’s leave to remain was curtailed with immediate effect, and he was taken into immigration detention.

The decision was principally based on an email, apparently sent by the Claimant to the Defendant (from the Claimant’s email account), and dated 6 September 2012, stating that he was already married to a Nepalese national named Susmita Dahal. The Claimant denied that he had sent the email, and denied that he was married to Ms Dahal, but was unable at the interview on 9 November to provide any evidence to support his denial.

On 29 April 2017, in the course of these proceedings, the Claimant produced an email from Ms Dahal stating that she had been in a relationship with the Claimant, but had never married him, and that she had been married to someone else on 9 August 2016. The email was accompanied by wedding photographs.

Mr Clayton drew the inferences on this basis, at paragraph 35 of his judgment, that (i) the Claimant had never been married to Ms Dahal; (ii) it was most unlikely that the Claimant had sent the email claiming that they were married; and (iii) it was probable that someone else had sent the email.

He concluded at paragraphs 57 - 59 of his judgment that the Defendant’s decision was unfair, because the Claimant was confronted with the email for the first time at the immigration interview. He was given no opportunity to rebut the allegation that he was married to Ms Dahal before the decision was made to curtail his leave and detain him. There was no evidence that there was any urgency which meant that the immigration officers had to make an immediate judgment once the interviews had concluded. It was accordingly unfair for the adverse judgment to be made at that stage.

Mr Clayton further found that the key issue in the case was

“the adverse decision formed by the immigration officers about the sham and bigamous marriage. … much of the material alleged against the claimant was ambiguous. It could be construed either way, and was, in fact, construed adverse to the claimant because of the negative conclusions about his credibility in relation to his denial of his marriage to Susmita Dahal” (paragraph 57).

I read that passage as amounting to a finding that the adverse findings of fact made against the Claimant in the decision curtailing leave, including adverse findings about the sham nature of his proposed marriage, were tainted by the unfair and (as it turned out) incorrect finding about his alleged previous marriage, and the consequential adverse conclusions about his credibility.

For the purposes of this hearing, the Claimant signed a further witness statement on 12 July 2017 giving more details of his treatment at the time of his detention, and the subsequent events. As set out above, this evidence was unchallenged.

The Claimant’s witness statement set out in detail the events of 9 November 2015. In particular, he stated as follows:

The Claimant had never been arrested or detained before. He states that he found the experience of detention shocking and embarrassing. He considered the period of detention, after careful thought, to be the worst time in his life. He was traumatised by the very poor conditions and environment in detention.

The Claimant states that after being detained, and even after release, his mental health has deteriorated. He has lost his usual habits like going to the gym, jogging, cooking, reading books, watching movies or going out with friends. He started to feel very low and pessimistic. He has no energy or passion to do anything and sometimes cannot get out of bed in the mornings. He has been diagnosed with depression/low mood, and has been prescribed an anti-depressant, Escitalopram (20mg), which he has been taking every day.

At the time of his detention, the Claimant had two jobs, with Heathplace Ltd and KFC. His average weekly pay for the last 7 weeks of employment was £94.09. He lost his jobs as soon as he was detained.

The Claimant believes that if his leave to remain had not been curtailed, and he had not been detained, he would have applied for further leave to remain. He remains in a relationship with Ms Fernandes.

The burden of proof is on the Defendant to justify any period of detention. In the absence of lawful justification, such detention constitutes the tort of false imprisonment.

In this case, she cannot satisfy that burden, since the decision to detain was tainted by a public law error (procedural unfairness). As a result, the detention was unlawful, and, in principle, the Claimant is entitled to be compensated for loss and damage suffered as a result of the false imprisonment.

However, the Defendant in this case contends that the Claimant has suffered no loss as a result of the unlawful decision to detain him, because, had that decision not been made, he could and would have been lawfully detained in any event.

As the party making the assertion, on normal tort principles the burden is on the Defendant to establish on the balance of probabilities that she could lawfully and would in fact have detained the Claimant had no unlawful decision been made: see Lumba at paragraph 71; R (OM) v Secretary of State for the Home Department [2011] EWCA Civ 909, at paragraph 23. Contrary to the submission of the Defendant, it is not sufficient for the Defendant to show that a Wednesbury rational decision to detain the Claimant could have been made. The question for the Court is what, on the balance of probabilities, can the Defendant show she would have done had she acted lawfully (critically including, in this case, fairly).

The Defendant submitted that the Claimant could and would have been detained in any event (i) because the finding that the proposed marriage was a sham would have been made, even if the finding of bigamy had not; and (ii) because even if a fair procedure had been followed, the Claimant would not have been able to produce the evidence to rebut the allegation of bigamy sufficiently quickly to prevent a decision being made, rationally, to detain him.

I have no hesitation in rejecting these submissions. I note that no evidence has been put forward to support them. In any event:

I therefore conclude that the submission that only nominal damages are recoverable fails.

General guidance on the correct approach to the assessment of general damages for false imprisonment is set out in Thompson v Commissioner of Police for the Metropolis [1998] QB 498. A higher rate of compensation is payable for the initial period of detention, to compensate for the initial shock. The Court in that case suggested a sum in the region of £500 for the first hour of detention, about £3000 for the first day (this would be the equivalent of about £800 and £5,000 today), and thereafter a daily rate at a progressively reducing scale for subsequent days of detention. However, this approach is not to be mechanistically applied: each case turns on its own particular facts. Detention is generally regarded as more traumatic for those of good character who have not previously been detained.

I note that the figures considered in Thompson should be further increased by 10%, as they predated 1 April 2013: see Simmons v Castle [2012] EWCA Civ 1288. This gives rough figures of about £900 for the first hour, and £5,500 for the first 24 hours.

Both the Claimant and the Defendant have presented a range of cases, in which varying sums have been awarded as general damages for false imprisonment. I have taken these into account, but, ultimately, must consider the facts of this case, on the basis of the general approach laid down in Thompson.

I consider that the initial detention of the Claimant was marked by very poor treatment, and that it was extremely (and unnecessarily) distressing and traumatic to the Claimant. I take into account the following matters:

As set out in Thompson, aggravated damages may be awarded where there are aggravating features about the case which would result in the claimant not receiving sufficient compensation for the injury suffered if the award were restricted to a basic award. Aggravating features can include humiliating circumstances at the time of arrest or any conduct of those responsible for the arrest, showing that they behaved in a high-handed, insulting, malicious or oppressive manner, either in relation to the arrest, or in the conduct of the litigation.

I consider that the circumstances I have outlined above constitute humiliating circumstances at the time of arrest, and high handed and oppressive conduct by those who took the Claimant into custody. It is clear from his evidence, summarised above, that these circumstances had a serious adverse effect on the Claimant.

I consider that these circumstances may be reflected either in an enhanced award of general damages for the first 24 hours of detention, or in a separate award of aggravated damages. I bear in mind the need to avoid double counting.

However expressed, I consider that the sum attributable to the first 24 hours in this case ought to be £11,000. This may be regarded either as the appropriate sum for general damages, given the particular circumstances identified above, or as a basic award of £6,000 (in line with the updated Thompson figure), together with aggravated damages in the sum of £5,000.

As to the remaining period of detention, I take into account:

Overall, taking all the relevant circumstances into account, for the remaining 35 days of detention I award the sum of £12,000. This makes a total of £23,000 for general damages.

I award special damages for loss of earnings at the rate of £94.09 per week for the period until 28 December 2015, when the Claimant’s leave to remain would have ended, had it not been unlawfully curtailed, making a total of £658.63. I consider that the Claimant is not able to show on the balance of probabilities that he would have received leave to remain after that date.

I have noted my approach to aggravated damages to deal with the circumstances of the detention above. I do not consider that the remainder of the Defendant’s conduct, including her conduct of this litigation, warrants a further award of aggravated damages.

In principle, interest is payable on the sums awarded above in respect of general and special damages. As indicated at the hearing, I invite the parties to agree the appropriate award for interest.

Accordingly, I award to the Claimant the total sum of £24,515.43 for general and special damages, together with interest.