Rapheael Olufemi Oluponle v The Home Office

The claimant, a Nigerian national, claims damages for false imprisonment, unlawful detention and personal injury following detention by the defendant between 4 May and 2 November 2016 – a period of 182 days, almost 6 months.

It is not in issue that the claimant was detained. The issues are

The claimant’s pleaded case is that he was detained in breach of the Hardial Singh principles because

At the Pre Trial Review Soole J refused to grant an application for the defendant’s witness to give evidence remotely – no application had been made, the witness was not identified and full reasons not given as to why remote evidence was required.

Mr Howarth renewed the application on the morning of the trial. The reasons for the application are that the defendant’s witness, Ms Pritchard, lives in the Liverpool area. She is the sole parent of a 9-year-old child, would not be able to take her child to school if she had to come to London, has no alternatives for childcare. She had no one else to ask save for her mother who is 80 and would be unable to pick her up and drop her off from school.

Ms Renfrew objected to Ms Pritchard giving evidence by CVP. She submitted that the reasons were not substantial enough, the claimant would suffer prejudice through not being able to cross examine the defendant, on whose evidence the defendant’s case was reliant, in person. Ms Renfrew accepted that no other witness could be found in time and that, therefore she submitted that the application should be dismissed, the case adjourned, refixed and the defendant pay the costs of and occasioned by the adjournment.

I granted the defendant’s application with the expressed reservation to Mr Howarth that the late application was such that it tended to present the Court with a fait accompli, as the Court would have to grant the application, or adjourn. The strong message should be sent back to those instructing Mr Howarth that a late application such as this one was wholly inappropriate. If there are reasons as to why a witness cannot travel then another should be selected in good time for the trial or an early application made.

However, I was entirely satisfied that it was in the interests of justice to grant the application. Ms Pritchard had some dealings with this case. The only alternative would have been to adjourn the case, wasting the time set aside by the Court, wasting a large amount in costs and delaying this litigation and other cases which could use the time in which the case would be refixed. I was satisfied that this was a case where credibility would be tested on the documents and that that could be adequately performed via CVP. I was assured that an electronic bundle would be provided to Ms Pritchard.

When Ms Pritchard began to give evidence there was an issue with the correct bundle. It was solved within 30 minutes. The link was of excellent quality. Ms Pritchard’s face was clearly visible. She used a headset so that her answers were easy to hear. Ms Renfrew was able to ask all her questions, take the witness to the documents and cross-examine her effectively as some of my findings below demonstrate.

Further, Ms Renfrew invited me to allow her to ask, in chief, questions surrounding the allegation in respect of the defendant’s contention that he absconded in or around 3 December 2006.

CPR 32.5(1) sets out the rules in respect of the limitation of evidence to exchanged witness statements. It provides materially that that

The parties agreed that on his release reporting conditions were imposed on Mr Oluponle. Further, the claimant’s statement did not deal with any matters as to absconding or failing to report. The only evidence in respect of that issue were the records of the Home Office to which Ms Pritchard referred which dealt with notes taken from 2006. At this stage of the case I considered that an assessment of risk in this case would be informed by the evidence as to whether the defendant absconded or whether he stopped reporting because he was told to do so by the Home Office. This case involves important rights as to unlawful detention and false imprisonment. I considered, at this stage, that it was important, to hear the only direct oral evidence currently available to the court. I wanted to see if Mr Oluponle could provide an explanation as to why, as agreed, he stopped reporting.

Mr Howarth objected on the grounds that he would be taken by surprise by this evidence. He did have the notes which gave his client’s version of events. I balanced the issue of surprise by making it clear that I would limit Ms Renfrew to only a few questions directly related to the claimant’s failure to report and would take into account that the evidence was presented late.

I heard from Mr Oluponle in person and, as set out above, from Ms Pritchard on a video link. She is a Senior Operations Manager with the defendant who manages teams which consider and progress deportation action against foreign national offenders. The facts were largely agreed by counsel based on the notes kept by the Home Office. Both Mr Howarth and Ms Renfrew cooperatively worked together, presented their cases ably and professionally and provided me with great assistance. I record my thanks to both of them.

Mr Oluponle was born in Nigeria on 22 June 1967. He told us in his statement that he entered the United Kingdom in about July 1999 but the verified Particulars of Claim signed by him assert that he entered the UK in about November 2005. Mr Olunpole was not satisfactorily able to answer why there was a difference between the two documents. He told me that he entered the UK in about 1999.

On 23 February 2006 the claimant was arrested at Stansted Airport when he attempted to fly to Ireland on a counterfeit passport in the false name of Mr Michael Orija. On 21 March 2006 he was convicted at Basildon Crown Court in the name of Orija and sentenced to 12 months’ imprisonment. There is a description of one conviction and two offences but no PNC record was shown to me. Mr Howarth submitted that there were two offences namely of having a counterfeit passport and using that passport. The material facts for any risk assessment were that the claimant had a counterfeit passport and used it to attempt to defeat immigration controls.

Throughout this period the defendant only knew the claimant as Michael Orija, the name on the counterfeit passport, and it was in that name that all the Orders and records were made in 2006 and thereafter in pursuing the claimant who was only known to the defendant as Michael Orija.

The claiment was served with a Notice of Decision to Make a Deportation Order on 7 June 2006 and he signed a disclaimer waiving his appeal rights and requesting to be removed to Nigeria. An Emergency Travel Document (ETD) Interview was held on 19 July 2006 and the application for the ETD was made to the Nigerian High Commission on 1 August 2006. The claimant was lawfully detained between 19 September and 19 October 2006 whereupon he was released on bail subject to reporting conditions.

The defendant recorded on 21 September 2006 that the claimant“didn’t show up to [sic] had a face to face I/V With the NGA H/C @ Harmondsworth on the 20/09/06.” This is recorded in later notes where it is said that the claimant ‘failed to attend’ a face-to-face interview which had been set up at the Nigerian High Commission on 30 September 2006. However, the claimant was in detention during this period and I am not satisfied that the evidence showed that his failure to attend was attributable to him. Mr Howarth attempted to make good this point by giving evidence that detention centres make allowances to ensure that the parties can attend but there was no admissible evidence to support this proposition.

A note on 18 October 2006 sets out that claimant was “released on bail to a new address on CID on 19 October 2006”. In his evidence to me Mr Oluponle helpfully confirmed that he was released on the condition that he go to a centre in London every week to sign in.

On 1 November 2006 the ETD had been agreed and Removal Directions were set for 9 December 2006. Travel documents were readied in December 2006 and couriered to Gatwick on 6 December 2006.

There is a factual dispute between the claimant and the defendant as to whether he absconded and if so the date on which he did so.

The claimant told me in his evidence that he stopped reporting when, after a period of time, he was told by an immigration officer that he had been reporting for such a long time that he should go and see his family in Ireland. After that conversation the claimant said that he did not go again. After he said that he did not go the claimant was asked what, if any, information he was told about his next date, the claimant said that the defendant did not give him any date. The claimant did not tell me that the reporting restrictions were lifted and simply said that after this conversation he stopped going and was not given any further dates.

The defendant’s GCID records provide a number of histories

The defendant next relies on a précis of a note made on 12 June 2014 where it is recorded that

Mr Howarth read over many other notes repeating the history of absconding such as, by way of example, the GCID notes from 12 July 2013, 12 June 2014 and then various notes of the history set out in detention review. These notes were not contemporaneous. The only source that I was given for these later notes was the contemporaneous notes I set out at paragraph 24 above. Accordingly, it is what is contained in the contemporaneous note which is relevant to my fact finding rather than comments and histories repeated in further documents.

The starting point in this case is that the parties agree that the claimant was placed on a reporting restriction when he was released on 27 October 2006. Further it is clear that removal directions were set a very short time after that date on 6 December 2006 and the claimant did not surrender to them or report on or around that date – had he done so, he would have been removed.

I am quite satisfied that the claimant stopped reporting on or close to the date set for his deportation, in his false name. The records set out that the claimant did not report again and failed to report subsequently after the date set for his deportation.

On the claimant’s own evidence the claimant did not report again after he said that that he was told that he should go to Ireland. This was ‘some time later’. Further, his evidence was then that it was because of his conversation with an immigration official that the did not report again. Whilst the claimant said that he was not told of his next reporting date when prompted, he did not say that his reporting restriction was removed, simply that he was not given another date. The reason that he ascribed to not being given a date in his evidence was the immigration officer saying to him that he had been ‘reporting for such a long time’.

The claimant’s evidence is manifestly incredible on the absconding issue. The claimant’s evidence against the contemporaneous notes is simply inexplicable for the following reasons

Against the contemporaneous notes, and the agreed history in 2006 of the imminent deportation I find that the claimant’s version of events is wholly unbelievable for the reasons set out above. Facing imminent deportation he stopped reporting and started to live in his real name without telling the defendant.

Ms Renfrew asserts that because the defendant did not cross-examine the claimant on the version of events that he gave late that I am not entitled to reject his evidence on such an important issue. Whilst agreeing with Ms Renfrew that this issue was important, I reject that submission. I considered that the claimant’s evidence was manifestly incredible, when weighed against contemporaneous notes, for the reasons set out above.

Accordingly, on the facts I find that the claimant stopped reporting at or around the time of his deportation in the false name of Michael Orija. He absconded.

In any event Ms Pritchard accepted that it had been ten years since the original conviction, the use of the name ‘Michael Orija’, the evidence as to absconding there was no other evidence that the claimant would reoffend.

On 17 July 2008 the claimant met his future wife. Ms Pritchard told me, and it was not challenged, that the claimant applied for applied for a Residence Card as he was an extended family member of an EEA national in the name of Awoponle on 4 June 2008. The defendant was unaware that the claimant was also Mr Orija. That application was refused on 8 September 2010. The claimant, in his true name, made an application for settlement on the grounds of long residency. The application for settlement was refused on 14 February 2011 but discretionary leave to remain was granted until 13 January 2014. The claimant’s oldest daughter was born on 29 January 2011 and his younger daughter on 21 July 2013.

Around 3 July 2013 Mr Oluponle had clearly decided to regularise his position and

The application to revoke was refused on 18 November 2013 and the claimant appealed on 3 December 2013. On 24 May 2014 the defendant sent a supplementary decision letter maintaining the decision it made on 18 November 2013.

On 1 December 2014 the claimant’s appeal against that revocation was dismissed. Permission to appeal was made citing Article 8 and respect for the claimant’s family rights with his wife who has sickle cell anaemia and his two daughters born on 29 January 2011 and 21 July 2013 to the First Tier and Upper Tier Tribunals. Those appeals were refused on 2 January and 27 April 2015 respectively. The claimant was making arguments in this appeal that were not, of course, open to him in 2006 when he had no such family connections. One of the judgments, probably the First Tier, described the claimant’s Article 8 claim as speculative.

The claimant’s claim for Judicial Review filed on 24 June 2015 challenging the Tribunal’s previous decision and the decision to deport him was refused on 29 March 2016. By this stage it is agreed that Mr Oluponle had exhausted all his appeal rights. I note that when an update of the Judicial Review was requested on 3 March 2016 the reply came back, and I find that this referred to the permission application as it referred to an order of the same date as the agreed date for the refusal that “Please see order saved on Doc Gen refusing permission in this case and certifying it totally without merit. The order was sealed on 29 March 2016. The claimant was not given a right to appeal to it.”

On 21 April 2016 Removal Directions to Nigeria were set for 24 May 2016 under a valid passport in the claimant’s name.

On 21 April 2016 the defendant, through Mr Blanchflower, carried out an assessment as to whether the claimant should be detained. Mr Blanchflower set out

Ms Renfrew suggested to Ms Pritchard that the failure to set out and list alternatives to detention such as electronic tagging and or a financial condition were not set out and therefore they were not considered. Ms Pritchard said that she was not sure that electronic tagging was available in 2016. In any event Ms Pritchard denied this. They had set out the presumption of liberty and that had only been outweighed by the factors set out above. The detention decision on 20 April set out at its recommendation as follows:

On 4 May 2016, when the claimant reported, as he had been regularly doing since 3 July 2013 the claimant was taken into detention under the name Michael Orija although he confirmed his real name.

The claimant was fearful and scared when he was detained with others. They had committed a number of offences. Drugs were endemic, he witnessed detainees harming each other. The nights were filled with banging and screaming. The food was of low quality and arguments surrounded it. He was pinned down on one occasion when his cell mate was forcibly removed for deportation. He saw others trying to kill themselves and witnessed a ligature having to be cut, he saw others being manhandled by the authorities. He worries that people will come to get him when he hears sirens or when people knock on the door fearing that he will be removed. The claimant did not see his family as he considered it would be too traumatic and his wife was not well. The detention causes his children to have separation anxiety and affected their sleep and night time continence.

His worst memories were being manhandled, the verbal and racial abuse and being treated like an animal. He felt low in mood and found it difficult to relate to people with a sensation of being cut off. There is no medical report and no claim for personal injuries.

The claimant filed an application for the Deportation Order to be revoked, made further submissions on 7 May 2016 based on the Article 8 claim. He was served with Removal Directions on 17 May 2016 with his further submissions refused by the defendant on 20 May under §353 Immigration Rules.

On 21 May 2016 the defendant was served with an IDC.4995 Paragraph 353 refusal setting out that there was no prospect of success of his further submissions. It seems to me that they had all been made before.

On 24 May 2016 the claimant applied for asylum on the grounds that he was bi-sexual and had been tortured by the Nigerian police in 1985. The removal directions were deferred. This was described, correctly in the circumstances given that deportation was imminent and this part of the process had begun in July 2013, as a “last minute asylum claim and this has deferred removal. If the claim is refused, removal can be achieved within a reasonable timescale.” An application for bail was made on 26 May 2016 which was refused on 1 June with reasons for that decision served on 6 June 2016 and, on the same day the claimant’s solicitors submitted a Temporary Admission (“TA”) request.

On 1 June 2016 the defendant carried out its first detention review through Ms Pritchard. The expectation had been for the claimant to be on the 21 May 2016 flight to Nigeria. The review noted that on 24 May 2016 the Asylum claim had been made and that Removal Directions were deferred because of it. The decision noted the same factors as set out above. However, it was still considered at that stage that the claimant’s removal could be completed within a reasonable timescale. It was noted that the submission of the asylum claim was ‘last minute’ and that this caused the deferral.

Ms Renfrew again suggested that no alternatives were considered as they were not set out in terms. Ms Pritchard denied this for the same reasons as set out above. Further Ms Pritchard referred to Section 6 of the review which reads as follows

Ms Pritchard agreed with Ms Renfrew that prior to considering whether or not to certify the Asylum claim under section 96(1) of Immigration and Nationality and Asylum Act 2002 (“s. 96(1)”) the defendant would need to know some facts about the claim and that there was approximately a 6 week delay between the claim and the interview. In respect of certification Ms Pritchard said that that was a matter for the caseworker and not her. However, Ms Pritchard did say that the defendant could not take a view on certification until after the interview although they had enough to make an educated assumption. Ms Pritchard agreed that at that stage the defendant would not have been in a position to know all the facts and that the detention reviews set out the likely timescale.

The defendant set out in that detention review the actions that it had followed and then an action plan once the Asylum and Protection claim had been made namely

The detention review recommendation was as follows:

On 8 June 2016 further information in respect of the Asylum claim was requested by the defendant. On 13 June 2016 the TA request was refused. On 14 June 2016 the claimant replied to the request for further information from the defendant.

On 24 June 2016 it was minuted that the “s96 certified non comp refusal to SPoE (Second Pair of Eyes – “SPoE”) who was, as the name suggests was the check and balance which the defendant maintained.

The claimant made a Rule 35 application on 27 June 2016 which was referred to the Asylum Casework Directorate (“ACD”). The claimant asserted that he had been a victim of torture by Nigerian Police in 1985 for 3 days as a result of being in a sexual relationship with a man. I do not have the Rule 35 Report but only the response to it.

On 28 June 2016 an interview with the claimant was booked with Mr Allen the Immigration Officer attending.

On 29 June the defendant carried out her second detention review. Ms Renfrew again suggested that the defendant did not know as to when deportation would be expected to take place. Ms Pritchard referred to her section 6 answer on the Detention Review form that I have noted above and in this form the proxy of 1-3 months remained as before. It was noted that a current barrier to removal was the Asylum claim that had been raised.

The form set out a number of actions that the defendant was progressing:

The review recommendation repeated the other matters contained in the 1 June review but added the further matters set out below in the square brackets in its recommendation:

The authorisation had the same first and last paragraph of the 1^st review and between those two paragraphs set out materially that

The Rule 35 Report was considered by the defendant. The defendant had not produced the report. She accepted that the claimant had scars and that they could relate to the events which the claimant relayed. However, there was no other corroborative evidence as to the cause of the scars, no independent evidence of torture and, although the claimant had encountered immigration officers over an 11 year period, this was the first occasion on which he had raised torture and had only done so in the face of his imminent deportation. She decided to continue to detain the claimant and served her response on 30 June 2016.

On 1 July the GCID notes that ‘NSF – being dealt with by CC and cannot be decided within 6 months. CC to manage the asylum claim. Authorised by SEO Mandy Baily ASY Cat 4 – Specialist Unit Referral.’ It was suggested by Ms Renfrew that ‘NSF’ meant not straightforward. Mr Howarth, in his submissions, took me to, a note that read as follows:

Ms Renfrew suggested by that time that it was clear that the matter would not be decided within 6 months. However, Ms Pritchard suggested that the note was misleading. She said that at time that the note was made, the case was ‘not being’ dealt with by CC (Criminal Cases) but was transferred there because the transferring department could not deal with the case within six months and that the CC timeline may be different. Ms Pritchard said that she appreciated that the note was badly worded. Mr Howarth in support of this version of events noted the words below the entry which provided for the referral. However, I reject the defendant’s explanation because the language was clear that the case, at that time, was ‘being dealt with by CC’ and the statement ‘cannot be decided within 6 months’ was a reference to CC who were also ‘to manage the asylum claim’. I accept that this was a note and that time estimates might change but on the evidence there was now an indication that the claimant’s immigration status could not be decided upon within 6 months in the view of the Criminal Cases team that was handling the decision. I accept that this was not a formal decision minute or conclusion of a decision review process. However it was an indication of timescales at that stage which, for the first time, differed from the 1-3 month assessments albeit before the interview.

The claimants’ asylum interview was conducted on 7 July 2016. A further TA request was submitted on 18 July. The Asylum referral was completed on 26 July 2016 with transcripts of those interviews requested by the claimant’s solicitors on 2 August 2016 (a second request was made on 10 August 2016 and a third request on 25 August 2016). On 26 July 2016 a request was made by the defendant to allocate the asylum claim as the interview was complete.

A 3^rd detention review took place on 27 July 2016. It noted the following actions that had been carried. The first entry partly repeats an earlier entry with the new words in square brackets.

The recommendation was in the same terms as the second review save that it was set out that

The decision recorded that

An email dated 5 August 2016 showed that the case had been accepted by the ACD. Ms Wall wrote that ‘this will be allocated to a case owner and completion may take 3 weeks. I have further discussed this with SEO Nina Pritchard to see if this case can be prioritised as the further submissions (Article 8 to also be address also by myself) are the only barrier to removal….”

On 3 August it was recorded in an email that the interview was “not of sufficient quality for certified decision….and some aspects of case not covered in sufficient detail.” The claimant’s solicitors wrote to the defendant in respect of the asylum claim on 6 August 2016.

A bail application made on 8 August 2016 and was refused on 11 August 2016.

On 10 August 2016 Mr Mullin emailed

On 10 August a request was made by Ms Wall for a further interview. In a separate note she also wrote that ‘Email received from Jacqueline Carrington to advise this case will be prioritised by the Asylum Team and it is anticipated that a decision will be made by 23/08/16 (date the next detention review is due by).’ By 11 August it was decided that a further interview was no longer required and the Asylum decision was in the process of being completed.

The fourth detention review was carried out on 23 August 2016 and it was noted that aside from refusing a TA and opposing bail that the “Action taken to progress case since last review was

The decision of 23 August is in the same words as the first three paragraphs and the last paragraph of the decision on 29 June 2016.

On 7 September 2016

On 13 September 2016 that

On 19 September 2016 the defendant served the claimant with their decision refusing his asylum claim and it was certified under section 96(1) with no right of appeal and also refused the Human Rights claim with no right of appeal under Paragraph 353 of the Immigration Rules, with removal directions set for 27 September 2016 on a charter to Nigeria.

The defendant admits that the case should not have been certified on the basis that the Asylum interview did not provide enough detail to allow a decision to certify the application.

On 20 September, detention was further reviewed. It was noted that the asylum claim was concluded by ACD on 7 September with removal directions requested on the same day and deportation was planned for 27 September. It was noted that the claimant’s appeal rights had been exhausted clearly on the basis that the claim had been certified. On that basis the claimant’s detention continued.

On 23 September 2016 the claimant served a letter of claim under the Pre-Action Protocol and the defendant withdrew the decision refusing both the Protection and Human Rights claim and deferred the removal directions.

Accordingly, the certification was reviewed, the asylum and Article 8 applications rejected but this time an in-country right of in-country appeal was granted with the Certification withdrawn on 26 September and a new decision was served on 27 September 2016 granting the claimant a right to appeal from the UK.

On 23 September the GCID recorded that the

Ms Pritchard told me that there was a reasonable likelihood of certification when the Asylum and Human Rights claims were made. However, when it was apparent that certification under section 96(1) was not going to be a possibility then then the new decision averted to above was issued. In any event before the interviews or information gathering the defendant did not have the information on whether to certify the claim and therefore her evidence was that it was reasonable for the defendant to continue her inquiries into this late asylum claim.

By a note on 17 October 2016 the defendant noted that they received the claimant’s appeal dated 10 October 2016 and that it had already been sent to the First Tier Tribunal. It was recorded that an inquiry should be undertaken as to whether the appeal could be expedited as it was the only barrier to the claimant’s removal.

This review of 18 October 2016 noted that which had gone before and set out that there was a need to “urgently consider the appeal against the Deportation decision to determine if it can be expedited and whether a release submission is appropriate”. Detention was appropriate, the review considered, whilst those inquiries were undertaken.

The defendant’s case was that it could not consider how long an appeal might take, until an appeal was made. Once the appeal was made then the defendant considered whether the claim could be expedited. On 19 October the GCID records that the Criminal Case Review Team / Casework Team (“CC”) expressed the fact that they had sent a response “explaining why I do not think that this an appropriate case to seek an expedited hearing. Spreadsheet completed” by Ms Rackstraw. This view was queried and discussed and then on 20 October where it was said “As this subject is detained, has a valid passport, and the appeal is the only barrier to his removal, is this not considered as compelling circumstances?” – the reference to ‘compelling circumstances’ is a reference as to whether there were good reasons for seeking to expedite the appeal. The notes record that a decision needed to be made as to whether the factors set out above were not compelling circumstances.

Ms Pritchard accepted that there was no application to the Court for expedition. Ms Pritchard’s evidence was that if there were compelling circumstances then the case could be expedited and the decision be delivered or at least a first hearing within a space of 1-2 months as some claims could be dealt with more quickly. On 21 October 2021 Ms Rackshaw confirmed with Ms Pritchard that “the appeal could not be expedited. It has been agreed to progress with a release submission. Release referral completed and forwarded by email.” The same Caseworker noted the next day that it had been agreed to make a release submission that was made on 25 October 2016 and although the claimant should have been released on 30 October 2016, he was released on 2 November 2016.

Thereafter the claimant applied for a Derivative Residence Card on 6 December 2018 which was refused on 5 April 2019. On 20 July 2019 the claimant filed an application under the EU Settlement Scheme – Zambrano Right. Immigration Judge Peer’s decision was served on 20 October 2019, and the Upper Tribunal granted permission to appeal on 12 May 2020 and gave Directions on 18 August 2020. The Appeal to the Upper Tribunal was dismissed on 4 May 2021 (the decision of Upper Tribunal Judge Pickup was served on 15 August) and the Zambrano application was refused on 20 May 2021. The High Court refused permission for Judicial Review on 28 May 2022. On 7 February 2023 the claimant’s EU Settlement Scheme (Zambrano Right) was refused.

The claimant requested an administrative review of the defendant’s decision on 20 February 2023 and a Deportation Order was withdrawn and no further action was decided upon.

The tort of false imprisonment has two parts: first, the fact of imprisonment and second, an absence of lawful authority to justify it. As Lord Dyson JSC said in R (Lumba) v Secretary State of for the Home Department [2011] UKSC 12 (“Lumba”) at paragraph 65

In this case where the parties agree that the claimant was imprisoned, the burden of showing that the detention was lawful lies upon the defendant. The parties agree that any lawful authority for the defendant to detain the claimant arises out of Paragraph 2(3) of Schedule 3 to the Immigration Act 1971 which provides that

That lawful authority is subject both to

The Hardial Singh principles were authoritatively and helpfully summarised by Dyson LJ, as he then was in R(I) v Secretary of State for the Home Department [2002] EWCA Civ 888 (“R(I)”)at paragraphs 46-48

In this case both parties rely upon either the absence or presence of obstacles preventing deportation. The claimant also places particular emphasis both on the conditions of the detention in which he was detained and also the effect of the detention both on him and his family.

The court assesses the Secretary of State’s decision having regard to the principles but I do not apply them rigidly or mechanically (Lumba paragraph 115). There is considerable guidance from the Appellate Courts as to the application of the principles and the different factors that apply. However, each case is fact dependant and the balancing of those relevant factors depends on all the different factual aspects of each individual case. In Fardous v SSHD[2015] EWCA Civ 931 the Court of Appeal held that there are no particular yardsticks during which detention will be presumed lawful;

The assessment is on the state of the evidence as known to the Secretary of State at the time. It is not an assessment based on hindsight. In Fardous v Secretary of State for the Home Department [2015] EWCA Civ 931 (“Fardous”) the Lord Chief Justice held at paragraph 42 that

A ‘sufficient prospect of removal’ does not require a predicted date of removal – it is part of the balancing exercise. In R. (on the application of MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112, Haddon-Cave J, as he then was considered that there could be a realistic prospect of removal without being able to predict a date and that question and any considered date would affect the balancing exercise when taking into account all the other factors at paragraph 65

The defendant places particular emphasis on the risk of absconding. It is of critical and paramount importance. In Fardous the Lord Chief Justiceexpressed the following view at paragraphs 44-46:

Whilst the risk of offending is “paramount” and the refusal to accept voluntary repatriation, neither constitutes “a trump card”. As for the risk of absconding, in R(A) v. Secretary of State Home Department[2007] EWCA Civ 804 (at paragraph 54) (“A”) Toulson LJ said that:

However, although a ‘paramount’ factor, the risk of absconding must not be overstated. In R(I) Lord Dyson said:

Further the defendant places reliance on the risk of reoffending which is an additional relevant factor which depends on the both the likelihood of the risk occurring and the harm that would be caused. Toulson LJ stated in A at paragraph 55that:

In applying Hardial Singh Principle 3 per R (Muqtaar) v Secretary of State of the Home Department [2012] EWCA Civ 1270 paragraph 36, the inability to deport within that reasonable period must be ‘apparent’ to the Home Secretary.

Deportation proceedings must be pursued with due diligence. In R (Krasniqi) v Secretary of State for the Home Department [2011] EWCA 1459 Carnwath LJ, as he then was, drew out a dividing line between administrative failure and illegality and the need to demonstrate that but for the illegality, he would no longer have been detained at paragraph 12

A relevant factor is whether any delay is caused by the claimant due to their lack of cooperation. Bean J, as he then was, set out a number of factors that may bear on the Hardial Singh principles at paragraph 12(v) of his judgment including cooperation namely

However, refusal of voluntary return does not necessarily permit an inference of a risk of absconding and, where a person has issued proceedings challenging his deportation then it is reasonable that he should remain in the UK pending determination of those proceedings, and the refusal to accept an offer of voluntary return is irrelevant at Lumba paragraph 127.

The claimant asserted that he had been tortured in 1985. R (EO & Ors) v Secretary of State for the Home Department 2013 EWHC 1236 provides a useful consideration of corroborative evidence of torture from the judgment of Burnett J, as he then was at §65

In Lumba the Supreme Court considered the weight to be given to detention during the appeal process which would depend on the appeal’s merits at paragraph 121

A breach of a principle of public law may also render detention unlawful but it must be a material breach i.e. one which bears on and is relevant to the decision to detain. In Lauzika, R (On The Application Of) v Secretary of State for the Home Department [2018] EWHC 1045 (Admin) Michael Fordham QC, sitting as a Deputy High Court Judge, summarised the position as follows [18]

In this case the decision communicated on 23 September was certified under Section 96(1) of the Nationality Immigration and Asylum Act 2002. That section provides as follows

In R(J) v Secretary of State for The Home Department [2009] EWHC 705 Stadlen J considered the approach to Section 96 namely

That jurisprudence finds expression in the Home Office Guidance on “Late claims: certification under section 96 of the Nationality, Immigration and Asylum Act 2002” which provides materially as follows:

Further, when approaching the correct approach to the 3^rd Hardial Singh principle, it was held in R(Ademiluyi) v Secretary of State for The Home Department [2017] EWHC (Admin) 935 that

Chapter 55 of the Enforcement Instructions and Guidance sets out the policy of the defendant:

On behalf of the claimant Ms Renfrew submitted that the detention was unlawful and amounted to false imprisonment from 4 May 2016. Human Rights informed her submissions but there was no distinct claim before the Court. They are relevant to my assessment. The failures of the defendant were cumulative. The submissions included the following

The defendant submitted that detention was obviously lawful on 4 May 2016 and was done for the purpose of removing the claimant from the UK. There were no barriers to removal. The claimant had exhausted the appeals process and his application for judicial review had been refused. The date for removal was less than three weeks away, the claimant had a history of absconding and had done so around the time of his previous removal directions in December 2006 and had continued until July 2013 – this was rightly high risk. Mr Howarth submitted that the claimants reporting for almost three years made the risk of absconding higher, rather than lower, as the reason he started reporting was to appeal the deportation order. The claimant’s offending was appropriately rated as medium risk or with a medium risk of reoffending as his offending was directly connected with avoiding immigration controls, using a counterfeit passport and using a false name. Mr Howarth further submitted that

I have set out the facts above as I have found them at some length. I have then set out the legal principles which I apply to those facts to reach my decision. Given the full narrative of facts and law I can express my conclusion, relative to the length of those parts of my judgment comparatively shortly.

The claimant’s offending was non-violent and occurred by the possession and use of a counterfeit passport in the false name of “Orija”. However, his history of offending is particularly relevant to the defendant who, in this case is enforcing immigration controls. It is relevant because the facts of the claimant’s criminal undertaking, including not just the use of the passport but using it in a false name, directly undermined the defendant’s immigration controls. Unlike other offences, the offence of which the claimant was convicted created not only a risk of reoffending but a risk of again undermining the immigration control to which the claimant was subject. There was not more than one criminal course of conduct.

I have found that the claimant absconded. He absconded around the time of his planned removal from the UK. The timing is clear. I draw the obvious inference from the timing that the claimant absconded in order to avoid deportation.

Further, the claimant absconded in his false name. He did not correct the defendant’s understanding of his true identity. I find that the claimant applied in his current name in 2008 for settlement. He did not tell the defendant then that he had been convicted in another name. It was only in July 2013 that the claimant properly identified himself.

Whilst the conviction was, as Ms Renfrew submitted, relatively stale, it was stale because the claimant had absconded over time and never corrected the defendant’s incorrect understanding that he was the same Michael Orija who had committed that offence until July 2013. The history of offending was hidden by the claimant.

By 26 April 2016 there were no barriers to the claimant’s deportation. None. All appeals had been exhausted. A flight was scheduled for 24 May 2016. However, the claimant now had a family with two young daughters which were matters that had been considered by the courts and were no bar to his removal. Further, the claimant had been reporting faithfully since 3 July 2013.

In my view the defendant’s decision to detain the claimant when he reported on 4 May 2016 was entirely reasonable. The purpose was to ensure that he would be removed in 20 days’ time. The claimant’s offending was directly relevant to his risk of evading immigration controls, the use of the false name and the failure to correct that false name throughout the period (and in the application for settlement in 2008) were matters that exacerbated the risk of undermining immigration controls.

The history of absconding around the time of the first removal should have, and did weigh heavily in the balance. Given the imminent removal of the claimant, his history of offending with a false passport which directly undermined immigration controls, his use of a false name, his failure reveal his false name and absconding to avoid a previous deportation order (“the risk factors”), I am quite satisfied that it was reasonable not to consider that alternatives such as a financial bond addressed the risks factors.

Further, whilst the claimants changed family life circumstances, faithful reporting over the previous three years and the upsetting conditions in which he was detained in Brook House (“the claimant factors”) were matters that affected the balance, they were not then, such as to outweigh the risk factors and the short period of detention that would occur prior to his detention at this stage. I am satisfied that the initial detention review, including the decision to detain did consider the claimant’s family life as a relevant factor. The error in the monthly progress report with respect to the claimant and his lack of family ties is not replicated in the reviews which are, of course, the material documents which set out the reasons as to why the defendant acted as she did.

The decision taken by the defendant on 21 April 2016 was eminently reasonable against the factual matrix, lawful and wholly justified on the facts given that balance, at that stage between the risk factors and the claimant factors where the period of detention would be very short and the deportation imminent.

The Claimant made a last minute claim for asylum. It prevented his deportation. For whatever reason the late raising of this claim by the claimant placed the defendant in a difficult position. Throughout the layers of appeals, consultations with lawyers engagement with the defendant this claim of torture had never been advanced before. I was not told the reason as to why that should be so. Many different explanations are possible but, in any event, the claim of asylum needed to be investigated and determined. That the claim was made late, in my view, bears on the reasonable period of detention because, given the risks set out above, the defendant needed a reasonable period of time to assess the claim and establish whether it would be a barrier to detention within a reasonable time. Whatever the reason for making the claim late it needed to be investigated although with diligence given that the claimant was detained.

I bear well in mind that Hardial Singh 3 is a forward looking principle. I am quite satisfied that at the time of the detention review on 1 June 2016, the defendant was justified in coming to the view that this late made asylum could be assessed within a reasonable time of between one and three months and it was reasonable to expect the claimant’s removal within that time. It was not unreasonable to expect the asylum claim to be certified and for removal to follow.

The defendant was acting with reasonable diligence and expedition given that the asylum claim was made not simply at the last minute but as the bell was striking. The claimant needed to be referred to the correct department, have an asylum interview and for that claim to be considered. Accordingly, the continued detention, against the background above, was reasonable because of the risk factors and it was reasonable on the evidence then apparent that deportation would occur within three months as Mr Pritchard said.

In June details were requested and provided for the asylum claim. These were needed prior to the asylum interview. The 24 June 2016 minute in respect of certification is difficult to understand as it was a comment prior to the interview and assessment of the asylum claim. I do not consider that it put the defendant on notice that the claim would not be capable of certification. Those were matters to be determined and because the asylum claim had been raised late by the claimant, that had yet to happen. Further, the claimant’s rule 35 application had been made and, on 28 June 2016 an asylum interview was booked.

At this stage the further authorisation of detention was clearly to effect removal of the claimant given the risk factors and was reasonable in all the circumstances given the late asylum claim. The risks factors rightly continued to weigh heavily and justified detention where it was not yet clear that this would be a relatively short investigation and deportation. There was a reasonable basis to consider that the late asylum claim would be rejected and removal within a reasonable time of 2-3 months be effected. However, the clock was ticking. The asylum claim made on 24 May 2016 needed to be assessed diligently and with reasonable expedition.

Consideration of Hardial Singh 4 now starts to weigh more heavily in the balance over a month after the asylum claim was made. Was the defendant proceeding with reasonable diligence to effect removal which, in this case, is answered by how the defendant was dealing with the barrier to removal – the asylum and human rights claim.

In my view the defendant was acting with reasonable diligence. It was sourcing the information on which the interview would be based, the referral to the ACD had been made and the interview booked. The Rule 35 Report had been considered and rejected as there was no independent evidence of torture.

Based on these investigations the expectation that deportation would still occur within a reasonable period was based on sound reasoning that matters were progressing with the asylum claim and it should be determined within a reasonable period of 2-3 months.

The decision to continue detention was reasonable as the risk factors continued substantially to outweigh the claimant factors. The change in circumstance prompted by the application for asylum was not so great as materially to change the reasonableness of the decision to continue to detain given the timing of the asylum claim.

The 1 July 2016 note that the asylum claim could not be dealt with or decided within 6 months was the alarm bell that matters might take considerably longer than had been considered – the range of 2-3 months was changing. This was simply a note of the team dealing with the claim. It was not the result of a formal meeting but it was the first indication that this claim might take longer to conclude that had been considered hitherto. However, the note also came before the asylum interview and I consider it would only be after consideration of that interview that one could arrive at an informed view as to how long the claim would take. After the interview a request was made to allocate the asylum claim as the interview was complete.

By this stage it had taken the defendant just over two months since the claim had been made to gather details on the asylum claim and effect an interview on 6 July 2016 which had not yet been assessed and was referred for assessment on 26 July 2016. However, I am satisfied that the defendant was still proceeding with reasonable diligence in the circumstances of the late asylum claim and to gather information and then assess it. The expectation from the assessment on 29 July was that the assessment of the asylum claim should still allow removal within a reasonable period – which I take to be the 1-3 months’ timescale set by Ms Pritchard at the time of the first review on 1 June 2016. Whilst there was not a predicted date there was a sufficient prospect of removal in this time period to justify, given the risk factors to continue reasonably to justify detention.

I am satisfied that the expectation of removal within 1-3 months by Ms Pritchard could only be based on the expectation of certification of the asylum and Article 8 claim. It would be the certification that would allow the removal of the claimant within a reasonable time. I am satisfied that hitherto, the expectation that the decision would be capable of certification was a reasonable one. The claimant had raised an Article 8 claim in his previous litigation and had exhausted the full panoply of rights and appeals. The asylum claim made very late.

Once the interview transcript was available I take the view the position began to change. The email of 3 August 2016 put the defendant on notice that, in the view of the assessment of the author of that email, the interview ‘was not of sufficient quality for a certified decision.’ This email is contradicted by the note of 5 August 2016 which suggested that the claim should only take 3 weeks to finalise. The position remained uncertain. The defendant needed to analyse the interview and come to a decision on the asylum claim and whether it could be certified.

On 10 August Mr Mullin set out the note in which it was clear both that he considered that the asylum claim was likely to be weak and incredible. However, he also expressed the view that there had been a failure to explore other issues in sufficient detail and it was that failure I infer from all the evidence, given that the defendant supplied me with no detailed explanation as to why the certification was wrongly made, that meant that the claim could not properly be certified. Mr Mullin wanted the claimant re-interviewed but as he had been asked to expedite the matter would assess it as it stood and do his best. That informed the decision not to re-interview the claimant on 11 August 2016 with an expectation for a decision by 23 August 2016. The defendant realised that matters had now become urgent and therefore expedited consideration of that claim given the next detention review on 23 August 2016.

The 23 August 2016 review was entirely performative and lacked any substance. I am not satisfied that any proper review of the facts of the case was conducted. The review, as I set out above, was simply a “cut and paste” of the 29 June 2016 review with no thought and no consideration applied to the evolving facts and the claimant factors or the risk factors. It was window dressing. Rather, the defendant’s considerations on 23 August 2016 are set in the aspic of the factors as they were on 29 June 2016.

The review should have, with reasonable diligence, considered the 3 August, 5 August and 10 August history. The defendant knew of this emerging position. The review did not engage with the twice expressed view that the interview was insufficient to allow certification of any determination of the asylum claim. As R(J) sets out, it should have been apparent to the defendant that could not satisfy all four tests to certify the decision and, in particular, the defendant could not be satisfied why the matter had not been raised earlier as no evidence was ever led as to why this should or should not be the case. The interview was insufficient for this purpose. The review simply kicked the can of the decision further down the road, holding a Nelsonian telescope to that which was revealed by the recent facts.

Given the issues as to the interview I find that expediting the decision on the inadequate interview would have been the defendant acting with reasonable expedition. That decision should have been ready by 22 August 2016 if the defendant had acted with reasonable dispatch. No more inquiries were necessary. The 22 August 2016 is not a date plucked out of the air by the Court but the defendant’s own anticipated date for its decision and it was right to put that as the anticipated date given the inadequate interview and the likely impact on certification which would prompt an urgent review of the decision to detain.

By this stage it was necessary to arrive at an expedited decision as there were real doubts that any decision could be certified. If the decision could not be certified then the time until deportation would stretch far into the future altering the balance of risk and likely changing that which was reasonable, which would demand review. As the next review was on 23 August 2016 the decision needed to be completed by then.

Had the decision been made on 22 August 2016, as reasonable expedition demanded that it should have been, it would have resulted an uncertified refusal and therefore, that there would be a need for an in country right of appeal.

The review of 23 August 2016 should have been informed by an uncertified decision to refuse the Protection claim. Had Hardial Singh 3 been considered at the 23 August 2013 review in the light of the above, it would have been clear that removal would likely not be effected within a reasonable time given the claimant’s continued detention, subject to the single question as to whether an appeal could be expedited.

I am satisfied that had the appeal against the decision to refuse the asylum claim been capable of expedition then continued detention may well have been reasonable depending on the timescale for the hearing of the appeal. There might then, have been a realistic prospect that deportation would take place within a reasonable time, and that might justify further detention balancing the claimant factors against the risk factors.

The same urgent consideration that was to be given to the decision whether it would be possible to expedite the appeal, that was eventually considered in the 18 October 2016 Review, should have been considered at this review on 23 August 2016. The 18 October 2018 review including inquiries and discussion took one week to arrive at the conclusion that expedition was either not possible or appropriate and to prepare a release submission which was done on 25 October 2016. That is a reasonable period of time to make inquiries and receive replies to the inquiry. The same urgent review and decision in respect of any appeal not being expedited should have taken one week after the 23 August 2016.

In my view, therefore, the further inquiries as to expedition and its length of time should have been completed and a release submission made by 30 August 2016. There is no evidence other than they would have had the same result as the inquiries that led to the conclusion that expedition was not possible. The factors were no different on 30 August 2016 to those on 21 October in the conclusion that expedition was not possible or appropriate.

Accordingly, on 30 August 2016 the defendant ought to have arrived at the same conclusion that she did on 25 October 2016 that the claimant should be released given the length of time until the deportation and the claimant factors. Yes, the claimant had absconded in a false name between 2006 and 2013 and interacted with the immigration authorities without disclosing his conviction or use of his false name. Further, absconding is a paramount consideration but it is not a trump card. The claimant, when not under imminent threat of removal as was the case again on 30 August 2016, had faithfully reported between July 2013 and May 2016. The risk of absconding against this history and without an imminent date of deportation must not be overstated. Further, the claimant was approaching having been detained for four months. The claimant factors, weighed against the time that would now be necessary to consider his case, rendered his continued detention unreasonable set against the fact that the deportation could not be effected within a reasonable time.

I consider that some 3 or so days would have been reasonable to organise the claimant’s release and that any detention beyond 3 September 2016 was unlawful.

Mr Howarth submits that the hopelessness of the asylum claim should inform the reasonableness of the period of detention. I agree that that is a relevant factor but it is not such as to justify continued detention when removal cannot be achieved within a reasonable period of time and given the countervailing claimant factors against the risk factors, now deportation was not imminent.

I reject Ms Renfrew’s submission that the unlawful certification of the asylum claim rendered the detention unlawful from first to last. In my view, it was not the unlawful certification per se, that rendered this detention unlawful. It was the failure of the defendant to apprehend, as was obvious, by 23 August 2016, that the claim would not be capable of certification and a right of appeal in country would be necessary extending the time until deportation which, balanced against the claimant factors would no longer justify detention..

I agree with Ms Renfrew that the subsequent certification was unlawful. However, the defendant, in all the circumstances of this case, and particularly the risk factors, would not be able to assess the likelihood of certification until the interview had been transcribed and assessed. Given the late asylum claim that required time, and acting with reasonable diligence, that assessment would reasonably have been made on 23 August and should have resulted in the outcome I have set out above.

I have not set a date earlier than the 23 August for the review because as I have found the assessment of the interview was performed on 3 and 10 August 2016 should have led to a refusal decision on 22 August 2016 which would then have been assessed the next day in the detention review.

I reject Mr Howarth’s submission that inquiries as to the time required for an appeal against the decision should await an appeal by the claimant, as the claimant might not appeal and therefore would simply be removed. On the facts of this case that is an unworldly submission. This claimant exercised all his rights on each occasion as he was entitled so to do.

In any event for completeness I go on and make findings in respect of September and October 2016 although my decision as to the unlawfulness of the detention is set out above. It should have been clear throughout September that the refusal could not be certified. The review on 20 September wrongly concluded, because of the unlawful certification of the refusal, that all rights to appeal had been exhausted and that the claimant would be removed on 27 September. The SPOE disagreed with the certification of the claim. There is no evidence as to why from the defendant. I have set my findings out as to the error in the certification decision.

The delay to assess the impact of the reversal to certify the decision until 18 October was wholly unreasonable. The claimant was in detention. No evidence was provided as to any inquiries being made prior to 18 October 2016 and I have rejected Mr Howarth’s submission that no inquiry was necessary until an appeal was received on 10 October 2016. The defendant failed to act with reasonable diligence during this time as well. The inquiries were urgent as set out on 18 October 2016 and had been urgent since the defects in the interview were apparent. Such an inquiry and a release submission should have taken a week with release a matter of 3 days afterwards.

As a result of my findings above it is clear that the claimant was detained lawfully from 4 May 2016 until 3 September 2016. He was unlawfully detained from 4 September until his release 60 days later. Compensatory including aggravated damages are pursued, exemplary damages are not.

Ms Renfrew conceded that there was no claim for personal injury. There is no medical evidence. I take into account the effect of the detention on the claimant set out above. I discount the claimant’s own evidence of medical conditions as that would require expert evidence and due to Ms Renfrew’s concession. I note that the claimant’s unlawful detention followed on from an almost four month period of a lawful detention. The claimant’s unchallenged evidence was of frightening conditions in his continued detention into the unlawful period. It extended the claimant’s separation from his family and extended his experience of these conditions. I take into account that he was racially abused and man handled. I take into account that the first and greater period of detention was lawful so that the initial shock of detention and separation from his family was attributable to lawful conduct and does not sound in damages. However, that his detention was wholly unnecessarily and unreasonably extended by the defendant’s failures for a period of 60 days.

Compensatory damages comprise two elements: the first to reflect the fact of the detention and the restrictions and deprivations that are the ordinary consequences of the deprivation of liberty and secondly whether those damages are aggravated by any special features of the case such as the circumstances of the detention or the defendants conduct. The parties agreed that MK (Algeria) v Secretary of State for the Home Department [2010] EWCA Civ 980, sets out the principles regarding an award of basic or compensatory damages, so that any assessment depends on a precise evaluation of the circumstances and the degree of harm. It is not a mechanistic approach and a global approach should be taken rather than a daily rate.

The gravity of the wrongdoing of false imprisonment is worsened by its length, that longer time should be tapered in respect of damages or placed on a reducing scale.

In R (on the application of Chaparadza) v Secretary of State for the Home Department [2017] EWHC 1209 (Admin) decided on 24 May 2017 resulted in an overall award of £10,500 of which £3,500 was for the initial shock of being detained (uplifting for inflation the £3,000 for the initial 24 hour period from Thompson v Commissioner of Police [1998] QB 498) and £7,000 for the remaining period of 70 days. £7,000 would give a sum of £9,750. Ms Renfrew submits that no evidence of harm was adduced in Chaparadza and it can be seen that the evidence as to the impact of the detention at paragraph 14 of that claimant’s statement was minimal. That claimant did not condescend to the detail and the impacts that the Mr Oluponle outlined to me in his unchallenged evidence.

I regard the impact on this claimant as in a wholly different class of severity. Equally there was no first shock and the claimant was detained in what by then, were surroundings which he had come to know over the previous four months although I take into account that they were frightening and had a severe effect on him although there is no evidence of personal injury.

The claimant referred me to Muuse v SSHD [2010] EWCA Civ 453 where the claimant had been wrongly imprisoned from first to last by the defendant and was awarded £25,000 uplifted to £40,952 and this included the terror that the claimant felt in facing a wrongful deportation to Somalia over a period of 128 days. That period of detention was roughly twice that in Mr Oluponle’s case and included the shock of initial detention and the fear of being wrongfully deported whereas Mr Oluponle was facing a lawful deportation certainly until 24 May 2016. This case is more serious by reason of the length of the period and the other factors that I have referred to above.

The Claimant agrees that some of the cases are an aid to quantum. In particular Foster J’s decision in R. (on the application of Abulbakr) v Secretary of State for the Home Department [2022] EWHC 1183 (Admin) where £17,500 (updated £19,500). In Abulbakr there was no initial shock, the length of time of the detention was shorter than that which is currently before me however it was uplifted due to the effect of the Covid-19 pandemic. Further Foster J declined to award aggravated damages as the failures were careless and unnecessary.

In my view the appropriate sum of damages for Mr Oluponle’s continued detention for 60 days is £20,000. The effect on him was serious, the conditions appalling and he told me of the long-lasting effects on him. However, there is no evidence to support any personal injury to him.

Ms Renfrew refers me to Thompson p.417 (8) where Lord Woolf MR explained, in respect of aggravated damages

I am unpersuaded that an award of aggravated damages applies in this case. The compensatory damages fully reflect the conditions in which the claimant was unlawfully detained and compensate him for his unlawful extended imprisonment.

The defendant’s failure was a failure to review the detail of the interview and mistakes were made in respect of certification and then there was a delay before the case was properly reviewed. The mistakes resulted in unlawful conduct and should not have occurred but they were not highhanded, oppressive, insulting or malicious. The claimant’s remedy lies in the compensatory award that I have made.

Accordingly, judgment for the claimant in the sum of £20,000. I would be grateful if counsel could agree any award of interest and the minute of the judgment. They should liaise as to the issue of costs, and in respect of any other consequential issues, with a view to agreeing those.

If agreement is not possible then I direct that they make concise written submissions on the outstanding issues including whether they consider there is a need for a further hearing. I shall determine whether there is a need for a further hearing and if not, then make any further orders having considered their written submissions.