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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

31 MAY 2016

R (on the application of Santos) v Secretary of State for the Home Department [2016] EWHC 609 (Admin)

R (on the application of Santos) v Secretary of State for the Home Department [2016] EWHC 609 (Admin)
EEA Residence Card-Dentention-EU Law Damages-Domestic Damages

The Home Secretary breached Directive 2004/38 and the Immigration (European Economic Area) Regulations 2006, and thus acted unlawfully, when she did not furnish a Brazilian national, who was the family member of an EEA national in the UK, with an EEA residence card. The Brazilian citizen was to be awarded £136,048 in damages for false imprisonment on account of his six-month detention pending removal and the Defendant’s breach of EU law.


23 March 2016

Administrative Court

Lang J



1.  The Claimant applied for judicial review of the Defendant Secretary of State's failure to issue him with an EEA residence card and her decision to detain him over a six-month period pending his removal. He also claimed damages for false imprisonment and for breach of EU law.

2.  The Claimant was a Brazilian national who had married a Portuguese national in the UK. In July 2010, he applied for an EU residence card on the basis of his marriage to an EU citizen. The relationship broke down shortly thereafter.

3.  The Secretary of State indicated that the Claimant had submitted insufficient evidence to support his application but no decision was made and so no right of appeal to the First-tier Tribunal was triggered.

4.  In January 2012, the claimant was arrested as an overstayer and detained by the Home Secretary with a view to his removal. He filed the instant application challenging the Secretary of State's failure to make a decision to grant him a residence card and the lawfulness of his proposed removal and detention.

5.  The Secretary of State granted a stay on removal and temporary admission, subject to conditions and released him from detention.

6.  The Claimant's further application for a residence card was refused but his appeal to the First-tier Tribunal was allowed. He was issued with a residence card in May 2014.

ISSUE:

7.  The Claimant argued that the Secretary of State violated his rights under Directive 2004/38 and under the Immigration (European Economic Area) Regulations 2006 as she failed to furnish him with an EEA residence card in the face of his entitlement to one.

DETERMINATION:

8.  The application was granted.

9.  The Secretary of State had acted unlawfully. There were multiple breaches for this finding, they were:

a.  failing to issue the Claimant with a residence card, in breach of Article 9, Article 10, and Regulation 17, between the date of his first application and the eventual issue of the residence card as he was throughout that period, a family member of an EEA national exercising treaty rights in the UK, and therefore entitled to a residence card; 

b.  failing to determine the July 2010 application within six months, as required by Article 10(1) and Regulation 17(3); 

c.  failing to determine his application for a residence card in July 2010 and on subsequent dates. That failure resulted in the Claimant being denied formal notification of the reasons for the decision and rights of appeal and a right to appeal to the First-tier Tribunal; 

d.  by informing prospective employers in the final quarter of 2011 that the Claimant was not entitled to work in the UK, thereby preventing him from obtaining employment; 

e.  detaining the Claimant for a six-month period in 2012 for the purpose of removal, without any proper regard to his right of residence as a family member of an EEA national exercising treaty rights in the UK; 

f.  failing to issue a lawful notice of decision on 29 January 2012 with respect to the decision to remove the Claimant from the UK and denying him a right to appeal to the First-tier Tribunal against the decision to remove him, granted by Article 15, Article 31, and Regulation 26; 

g.  failing to apply her own policy on enforcement action against family members of EEA nationals set out in the Secretary of State's European Casework Instructions and Chapter 55 of her Enforcement Instructions and Guidance; 

h.  failing to offer the Claimant a one-month grace period to leave the UK voluntarily, pursuant to Article 30(3) and Regulation 24(6); 

i.  placing restrictions on the Claimant’s right to reside after his release from detention, including preventing him from working, from accessing public funds or other assistance available to him as a person lawfully resident in the UK, and requiring him to report and preventing him from travelling; and 

j.  failing, in respect of the Claimant’s residence card application in November 2012, to issue a certificate of application which allowed him to work and failing to determine it within six months as required by Article 10(1) and Regulation 17(3).


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10.  It was held that the Claimant had been falsely imprisoned as there was not, at any stage, any lawful authority for his detention.

11.  The Claimant was therefore entitled to general damages of £40,000 for the loss of liberty, shock, humiliation, loss of reputation, and for any physical injury caused by the detention.

12.  Special damages of £6,578 were awarded for financial loss relating to the tort and aggravated damages of £10,000.

13.  Further exemplary damages of £20,000 for oppressive and unconstitutional treatment by government servants were awarded.

14.  The Claimant’s loss was caused by a result of the Secretary of State's breach of the Directive (Francovich v Italy (C-6/90) [1991] E.C.R. I-5357 and Brasserie du Pecheur SA v Germany (C-46/93) [1996] Q.B. 404 applied). Damages under EU law should not duplicate the award made for the Claimant's unlawful detention. The Claimant was awarded £59,470 for the breach of EU law.

15.  The total award was £136,048.


KEY PARAGRAPHS:   
[133]; [148-159]; [163]
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