Iwona Deptka v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Soole |
| Judgment Date | 18 January 2019 |
| Neutral Citation | [2019] EWHC 503 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2437/2017 |
| Date | 18 January 2019 |
[2019] EWHC 503 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Soole
CO/2437/2017
The Queen on the Application of
Ms J. Stratford QC and Mr S. Knight (instructed by Lambeth Law Centre Public Interest Law Unit) appeared on behalf of the Claimants.
Mr W. Hansen (instructed by the Government Legal Department) appeared on behalf of the Respondent at the hearing and MR J. BETHELL appeared at the judgment read-out.
This has been the hearing on quantum of damages in respect of the claim by each Claimant, Ms Deptka and Mr Sadlowski, for 154 days' unlawful detention in 2017. Last week, Mr Sadlowski's representatives were advised of the sad news that he had died just before Christmas at the age of 38. Following submissions from Counsel for the parties at the start of the hearing, I ordered that pursuant to CPR 19.8(1)(a) his claim should proceed in the absence of a person representing his estate. Further steps will of course need to be taken before the judgment in his favour can be enforceable.
On 8 March 2017 the Claimants were found by police sleeping rough in Southport, Lancashire. They are each Polish nationals. Ms Deptka was born on 22 October 1985; Mr Sadlowski on 6 November 1980. On their account they had entered the UK respectively in 2012 and 2004 and had been unmarried partners since 2015. Following street interviews and in pursuance of a national policy in respect of EEA nationals found sleeping rough in the UK, and as set out in a policy document entitled ‘European Economic Area Administrative Removal’, version 3.0 published 1 February 2017, they were detained and taken on that day to Wavertree police station. They were each then served with a removal notice under reg.23(6)(c) of The Immigration (European Economic Area) Regulations 2016 on the alleged grounds of misuse of their right to reside. Each was identified as an adult at risk.
On the following day, 9 March, Mr Sadlowski was transferred to Colnbrook IRC. After six nights at the police station, Ms Deptka was transferred to Harmondsworth IRC. After four weeks' separation, and following repeated requests by Mr Sadlowski, they were reunited in a family unit at Yarl's Wood IRC. On 17 March 2017 Ms Deptka exercised her right to appeal to the First-tier Tribunal (FTT).
With assistance from advice surgery solicitors in his IRC, Mr Sadlowski prepared an appeal to the FTT, but for reasons which are unclear, his attempts to file the appeal were unsuccessful. On 21 March 2017 the generic challenge to this policy was made by the issue of judicial review proceedings in what became the lead case of Gureckis and others. On 2 May 2017 the Home Offence issued removal directions for Mr Sadlowski with a date of 21 May 2017. His further attempt to file an appeal to the FTT was unsuccessful and the Home Office advised that his removal would proceed.
In the absence of a positive response to pre-action protocol letters by their representatives, the Public Interest Law Unit, the Claimants applied to the Court on 20 May 2017 for interim relief. On that day Simler J made orders prohibiting their removal pending resolution of judicial review proceedings on their behalf. On 9 June 2017 Ms Deptka's appeal to the FTT was refused. The judge found in her favour on the critical issue arising under reg.23(6)(c), holding that the Home Office had not demonstrated that she had misused a right to reside, but dismissed the appeal on a ground not advanced by the Home Office that Ms Deptka had not demonstrated that she was a qualified person within the meaning of reg.23(6)(a). She appealed to the Upper Tribunal.
By summary grounds of defence in the present claims dated 26 June 2017 the Home Office denied liability. It was also contended that, even if the policy was unlawful, it did not follow that the detention was unlawful: see para.143 of that defence citing Draga v SSHD [2012] EWCA Civ 842.
On 29 June 2017 permission to apply for judicial review in the lead cases was granted by Ouseley J. On 4 July 2017 Lang J made orders which included a stay of these present claims pending the outcome of proceedings in the FTT. On 7 July her representatives filed Ms Deptka's appeal to the Upper Tribunal, and on 10 July they lodged Mr Sadlowski's out-of-time appeal to the FTT. On 17 July Ms Deptka was granted permission to appeal to the Upper Tribunal. On 8 August 2017 the Claimants were released from detention after a period of 154 days. The release was subject to reporting requirements. They each attended one reporting event, namely on 31 August 2017.
In the meantime, on 23 August, the Home Office presenting officer advised the Upper Tribunal that it wished to withdraw the opposition to Ms Deptka's appeal. This was on the basis that it had been procedurally unfair for the FTT judge to find against her on a point not taken by the Home Office. The Upper Tribunal agreed and, following a hearing on 25 August, allowed the appeal by decision dated 13 September 2017. In the meantime, on 31 August 2017, Mr Sadlowski's appeal to the FTT was allowed.
Following a 3-day hearing in November 2017, on 14 December 2017 Lang J handed down her decision on the generic challenge, holding that the policy contained in the version 3.0 document of 1 February 2017 was unlawful and fell to be quashed in so far as it treated rough sleeping, whether intentional, harmful or otherwise, as an abuse of EU rights: see Gureckis v SSHD [2017] 4 WLR 9.
In the present cases, on 20 June 2018 Lang J lifted the stay on the proceedings, granted permission to apply for judicial review and ordered that the hearing should include issues of liability and quantum on the claim of unlawful detention. She made various consequential directions.
On 6 September 2018 the Home Office served the detailed grounds of defence. This stated for the first time that, in the light of the decision in the lead case, the unlawfulness of the policy was not disputed. It continued that: “On that basis it is not disputed that each of the claimants was unlawfully detained” i.e. without reliance on the authority of Draga v SSHD.
In the light of that admission, on the same day the claimant's representatives emailed the Government Legal Department with a request for interim payments. This was initially refused but then was conceded on 26 September 2018 in the sum of £12,500 each, which was duly paid.
Ms Deptka claims basic, aggravated and exemplary damages in respect of her unlawful detention. Mr Sadlowski's claim is for the same three heads of damages. However, in consequence of his death and the provisions of s.1(2)(a)(i) of the Law Reform (Misc. Prov.) Act 1934, the damages recoverable by his estate cannot include exemplary damages. The claimants also claim Francovich damages for alleged breach of EU law, namely the right to free movement under the Citizens' Rights Directive (2004/38/EC) in respect of the imposition of reporting requirements. Whilst not admitting liability and for the purpose of these claims only, the Home Office agrees to pay damages under this head for each Claimant in the claimed amount of £1,000. Accordingly that distinct claim needs no further consideration.
The Home Office agrees the principle of basic compensatory damages but challenges the amount claimed and disputes the claims for aggravated and exemplary damages in their entirety. The relevant law for the recovery and assessment of basis aggravated and exemplary damages is not materially in dispute between the parties.
As to basic damages, the position is summarised in MK (Algeria) v SSHD [2010] EWCA Civ 980 in the judgment of Laws LJ. Citing a number of authorities he stated at para.8:
“There are three general principles which should be born in mind: 1) the assessment of damages should be sensitive to the facts and the particular case and the degree of harm suffered by the particular claimant… 2) Damages should not be assessed mechanistically as by fixing a rigid figure to be awarded for each day of incarceration… A global approach should be taken… 3) While obviously the gravity of a false imprisonment is worsened by its length the amount broadly attributable to the increasing passage of time should be tapered or placed on a reducing scale. This is for two reasons: (i) to keep this class of damages in proportion with those payable in personal injury and perhaps other cases; and (ii) because the initial shock of being detained will generally attract a higher rate of compensation than the detention's continuance.”
As to the damages for the initial shock, Laws LJ continued (para.9), reciting guidance from the decision of Thompson v Commissioner of Police [1998] QB 498 to the effect that:
“…in a straightforward case of wrongful arrest and imprisonment the starting point was likely to be about £500 for the first hour of loss of liberty and a claimant wrongly detained for 24 hours...
To continue reading
Request your trial
-
DOUGLAS NGUMI v THE HON. CARL BETHEL v THE HON. BRENT SYMONETTE v WILLIAM PRATT v Peter Joseph
...others [2020] 2 LRC 135 considered R (on the application of Iwona Deptka and another v Secretary of State for the Home Department [2019] EWHC 503 (Admin) considered Ruddock & Ors. v Taylor [2003] NSWCA 262 considered Takitota v The Attorney General and others [2009] 4 BHS J. 40 considered T......
-
Douglas Ngumi v The Attorney General of The Bahamas and Others
...v Secretary of State for the Home Department [2017] EWHC 1834 (Admin), R (Deptka) v Secretary of State for the Home Department [2019] EWHC 503 (Admin), Ruddock v Taylor and Guishard. The Court of Appeal concluded in light of these cases that: “38. A review of these authorities shows that ......