Mr A Holownia v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Simler DBE |
| Judgment Date | 03 April 2019 |
| Neutral Citation | [2019] EWHC 794 (Admin) |
| Date | 03 April 2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3382/2017 |
[2019] EWHC 794 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Simler DBE
Case No: CO/3382/2017
Mr S Knight (instructed by Duncan Lewis) for the Claimant
Ms J Anderson (instructed by Government Legal Department) for the Defendant
Hearing dates: 27 February 2019
Approved Judgment
Introduction
This judgment determines the quantum of damages for admitted unlawful detention of the Claimant. The Claimant is one of a number of individuals who are part of a cohort of European Economic Area ‘rough sleeper’ cases. He was unlawfully detained pursuant to the Defendant's policy of issuing removal papers to, and detaining, EEA nationals who were alleged to be homeless and therefore not exercising Treaty rights pursuant to the Immigration (EEA) Regulations 2006 (“the EEA Regulations”). The detention extended from 12 April 2017 to 11 September 2017, a period of 153 days.
Liability to pay damages for unlawful detention has been accepted in this case (as in others) following the decision of Mrs Justice Lang in the lead case Gureckis and others [2017] EWHC 3298 (Admin) that among other things there was a systematic verification of the exercise of Treaty rights of those identified as rough sleepers which was unlawful. The findings in the lead case were expressly stated to be the only basis on which liability for unlawful detention has been conceded.
Psychiatric/psychological injury is not pleaded as a separate head of loss in the Claimant's judicial review claim form as it could and should have been to ensure clarity and avoid uncertainty, although I accept there is no breach of CPR Part 54 in not doing so. However, the Claimant applied for permission (having lodged an application notice dated 12 February 2019) to rely on an expert report prepared by Dr Thomas Sissons MBBS, BSc (Hons), MRCPsych, dated 27 November 2018 in support of his claim for damages for psychological injury said to have been caused by his unlawful detention. The report was served on the Defendant (and court) on 3 December 2018, together with submissions on quantum outlining this claim, in accordance with directions made by Lang J. (That was a few days late but a short extension from 30 November 2018 was sought). However there was no compliance at all with CPR Part 35.
The contents of the report are disputed and the application to admit it opposed by the Defendant. Accordingly I heard argument about it at the beginning of the hearing, and for reasons outlined in a short ruling, I granted permission for the Claimant to rely on the report but only at a further hearing directed at consideration of psychiatric or psychological injury. That will enable the Defendant to respond to the report by obtaining his own report if so advised, and for disclosure of medical notes and records to be given. It also enables directions to be given and complied with for experts to meet and narrow the issues, and for cross-examination to take place in due course if necessary. At this stage, I have reserved the question of psychiatric injury and loss to myself.
This judgment accordingly deals with basic and aggravated damages, and the claim for exemplary damages. It does not address the question of mental health injury which is adjourned to another day.
Procedural history and facts relating to the Claimant's detention
There is no witness statement from the Claimant for the purposes of this hearing. I have however, been provided with a number of contemporaneous records relating to the Claimant's detention. In the absence of any evidential basis for doubting the accuracy of this contemporaneous material, I proceed generally on the basis of its accuracy. The documents include Home Office monthly progress reports, the CID and GCID case records and a calendar of events, Detention Reviews for the period from 12 April 2017 to 9 September 2017, and records for the same period from Healthcare personnel at Gatwick Immigration Removal Centre. I also have the pleadings and the correspondence relating to this litigation.
The Claimant is a national of Poland. His date of birth is 5 June 1955. He entered the UK in 1993 or 1994 on a visitor visa. He overstayed the visa but his stay was later regularised. During his time in the UK he has worked as a self-employed carpenter. He has filed tax returns for at least some years with HMRC, prepared by an accountant. There is also evidence of him working in the construction industry and he has filed self-employed tax returns in relation to certain periods.
It appears that a status request from police was sought in relation to the Claimant on 28 April 2015 when he was found rough sleeping at Heathrow airport. The documents do not indicate whether this was done or what happened thereafter.
On 6 January 2016 the Claimant was encountered by Immigration Officers. He was given form IS.151A (EEA) (a notice to a person liable to removal). The form states that he was “ specifically considered a person who has failed to exercise treaty rights in the UK”. Form IS.151B (EEA) (a notice of immigration decision with instructions on how to appeal) was completed and should have been served on him at the same time, but the Immigration Factual Summary (which I assume to be correct) does not indicate that it was in fact served.
Whatever the actual facts, the Claimant appears to have given the following information to Immigration Officers as recorded in the GCID record sheet for 6 January 2016:
“He has been in the UK for five years and states he is not working. His close ties are to his native country where the rest of his family reside. He has no known assets in the UK that could hinder any barrier to his removal. He has no fixed address in the UK.”
The Claimant was granted temporary release and required to report to Eaton House on 5 February 2016 at 11am. On reporting he was told he could bring any evidence he had to show that he was in fact exercising EU Treaty rights or of having made an appeal.
The Claimant failed to attend the reporting date on 5 February, or provide the evidence requested, and no appeal was lodged on his behalf.
Subsequently, on 12 April 2017 the Claimant was detained by the Defendant whilst sleeping rough at his work site.
He was kept at Brook House Immigration Removal Centre (“the IRC”) for the duration of his detention. On arrival he was recorded as suffering from asthma for which he took salbutamol sulphate and it was recorded that he had a month's supply on 12 April 2017. No other medical conditions are identified.
Removal directions were set for removal to Poland on 28 April 2017, but he refused to leave the UK and this removal did not take place. The Gatwick IRC Healthcare records has an entry for the Claimant (as a new arrival from Luton airport, presumably after this failed return on 28 April 2017) stating that he had no intention of self-harm but had tried to kill himself three years earlier “when he became homeless, after his wife divorced and sold the house”.
A GCID entry for 2 May 2017 records a discussion with the Claimant about the consequences of not complying when removal directions are set. The Claimant said he had been living in the UK for 25 years and believed that he had medical problems (asthma and other health issues) which had caused him to stop working and therefore become homeless. The note records his wish to stay in the UK and prove his claim. The note records that G4S was to carry out their own induction which included signposting the services available to him within the IRC, in other words legal assistance, bail for detainees etc.
A GCID entry for 24 May 2017 records the view that the Claimant was an EEA national found not exercising Treaty rights and considered to be misusing his freedom of movement rights. Removal directions were in place for 8 June 2017. The note records that the IRC had not raised any concerns that his condition could not be managed in detention, and states the view that there were no mitigating circumstances warranting his release so that detention continued to remain appropriate with a view to removal.
By a pre-action protocol (‘PAP’) letter dated 5 June 2017 Duncan Lewis, solicitors acting on behalf of the Claimant, set out the Claimant's history in the UK including his long residence here. They said his removal from the UK would be in breach of the EEA Regulations, that he had acquired a right of permanent residence in the UK and had been exercising Treaty rights while in the UK. They asked the Defendant to stay removal and release the Claimant from detention. They also requested disclosure of all detention reviews and GCID notes. Although the letter makes express reference to human rights representations, it does not in fact contain any substantive representations about the Claimant's human rights.
The Claimant's removal on 8 June was deferred in consequence of these representations.
On 7 June 2017 the Claimant was seen by an IRC officer and served with a monthly progress report. He said that he should not be detained and that he would protest by not accepting food. The officer explained to him that refusing to eat would not affect his case. He responded saying he understood but “his job was his job and his protest was his protest”. No other issues were raised.
By a decision letter dated 9 June 2017 the Defendant refused and certified as clearly unfounded the so-called human rights submissions made by the Claimant. In Annex A to the letter it was explained that the Claimant was removable because he had ceased to have a right to reside by ceasing to work in the UK. The letter stated that the Claimant was...
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