Damages of over £100,000 secured for client detained unlawfully for 20 months
Date posted: 12 July 2016
AXD is a Somali national who has lived in the UK since 1997. Although he was granted Indefinite Leave to Remain in 2007, the Home Office made a decision to deport him in 2008 after his conviction for unlawful wounding for which he was sentenced to 16 months imprisonment.
AXD challenged the lawfulness of his detention between 27th August 2009 to 17th May 2011, a period of 20 months and 21 days, and between 27th November 2011 to 5th December 2014, a period of 36 months and 8 days. Throughout the time he was detained AXD had outstanding representations that his removal from the UK would breach his rights under the Refugee Convention and the European Convention on Human Rights. AXD argued that his detention breached the Hardial Singh principles, which set out the limits on the Home Office’s power to detain, because there was no prospect that he could be removed from the UK within a reasonable period of time, because the Home Office failed to act with reasonable diligence and expedition in making a decision on his asylum claim, and because he was detained for a period of time that was unreasonable in all the circumstances.
In relation to the first period of detention, Mr Justice Jay found that although the Home Office failed to act with reasonable diligence and expedition, this did not render AXD’s detention unlawful because even if the Home Office had made a decision on his asylum claim when they should have done, it was unlikely to have led to him being released from detention any earlier than he was.
In relation to the second period of detention, Mr Justice Jay found that AXD was detained unlawfully for a period of 20 months and 5 days, from the beginning of April 2013 until his release on 5 December 2014. The Judge reasoned that the Home Office should have taken a decision on AXD’s fresh asylum claim by the beginning December 2012, and that if they had done, AXD would have won an appeal against a negative decision, with the result that he would have been released from detention. The Judge also held that by July 2013 the client’s detention was unlawful because for a period of time that was unreasonable in all the circumstances.
In addition to basic damages of £80,000, the Judge awarded AXD aggravated damages of £25,000. There were four aggravating features of AXD’s case. Firstly, the Home Office’s serious and unacceptable delays in considering AXD’s asylum claim while he was detained, for which senior officials failed to take responsibility. Secondly, the fact that AXD received sub-optimal treatment for his schizophrenia for almost a year. Thirdly, the fact that when he was eventually released he immediately became homeless because the Home Office failed to implement a proper plan for his welfare, in spite of fact that they accepted at the time that he was suffering from schizophrenia, and were in possession of evidence that he had become institutionalised as a result of the length of time he had been detained. The fourth aggravating feature was the Home Office’s failure, during the course of the litigation, to disclose evidence that showed that only a “minuscule” number of Somali nationals were actually removed to Mogadishu during the entire time AXD was detained.
The Judge recognised the importance of access to justice for unpopular immigration detainees in stating: “only those obligated to an adherence to the rule of law would be likely to vindicate his rights.”