Onos v Secretary of State for the Home Department  EWHC 59 (Admin)
Following a failed asylum application and an attempt to abscond from removal, the Claimant and her family were put in pre-departure accommodation for more than 72 hours. The Claimant submitted that her removal with her children breached the s.55 Borders, Citizenship and Immigration Act 2009, that the detention was unlawful because it was in breach of the Secretary of State's own guidance, and that she was entitled to aggravated damages. The application was granted in part. The detention of the Claimant and her children had been unlawful from the outset. The Claimant was only entitled to nominal damages for the first 72 hours, but compensatory damages for her detention beyond that point.
26 January 2016
Elisabeth Laing J1. The Claimant had illegally entered the UK and eight years later claimed asylum. The Defendant Secretary of State refused that claim, and served her with notice of removal as an illegal entrant.
2. An immigration judge dismissed the Claimant’s appeal and she was subsequently served with directions for her and her family's removal. Instead of taking the planned flight,the Claimant absconded with her children. When they were found and she was arrested, another flight was organised and it was decided that in the meantime they would enter pre-departure accommodation
3. It was subsequently realised that the notice period between service of the removal directions and the planned flight was too short to comply with Ch.60 para.2.4.1 of the Secretary of State's Enforcement Instructions and Guidance. Another flight was rescheduled for a later date.
4. The consequence of that decision was that the Claimant and her family would be in pre-departure accommodation for more than 72 hours. To facilitate this, the Secretary of State had to authorize, in accordance with Ch.45(b) para.5.2, an extension to the detention in pre-departure accommodation. Article continues below...
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ISSUES:5. The Claimant submitted that her removal with her children breached the s.55 Borders, Citizenship and Immigration Act 2009
6. The Claimant also submitted the detention was unlawful because it was in breach of the Secretary of State's own guidance
7. The Claimant further argued that she was entitled to aggravated damages.
DETERMINATION:8. The application was granted in part.
9. The Defendant Secretary of State's decision to remove the Claimant and her children had not been unlawful: when the removal decision was made, she had had no outstanding right of appeal that could have been an obstacle to removal. In such circumstances, the Secretary of State was, broadly speaking, at liberty to remove a person.
10. The Defendant was fully entitled to exercise her statutory power to detain the Claimant and her children. In exercising that power, the Defendant was required to follow her published policy save for there being a good reason not to. Any breach material to the decision would make the decision to detain and lawful and give rise to the tort of wrongful imprisonment. In the present case, the Defendant failed to comply with Ch.60 para.2.4.1 thus was in breach of her own policy. Furthermore, the Secretary of State failed to follow Ch.45(b) para.5.2, which provided restriction concerning detentions beyond 72 hours. The breach of Ch.45(b) para.5.2 was caused by the breach of Ch.60 para.2.4.1 and that was not to be considered a good reason for breaching the policy. It followed that the detention of the Claimant and her children had been unlawful from the outset.
11. In relation to damages, the Claimant was entitled to more than nominal damages as she and her children would not have been detained had the policy been applied lawfully. If the policy had been properly applied, the Claimant and her children would have only been detained for up to 72 hours. It followed that the Claimant was entitled to nominal damages for the first 72 hours and compensatory damages beyond that point.
12. The Defendant had no entitlement to aggravated damages as there had been nothing high-handed, insulting, malicious or oppressive about her arrest or detention— it was a consequence of her choice to abscond.
KEY PARAGRAPHS: [49-52]; ; ; [60-64]; [68-71]; .