Claiming Compensation from the Home Office for Breach of Immigration Rights – Part 2
False imprisonment and Delay
Immigration applicants who are the victim of false imprisonment and/or delay may be able to claim damages from the Home Office. Following on from our previous blog discussing the general principles of claiming compensation, this article will cover how the courts deal with these specific offences.
Individuals can be held in detention centres in the UK if their applications to remain in the country are being processed, or have been refused. Many claimants are held long-term and it is difficult to get bail. Therefore, if a person is falsely imprisoned in a detention centre, they will naturally want to claim compensation for their distress and loss of opportunities.
Can an Asylum seeker bring a claim for false imprisonment in a civil court?
This question was considered in D v Home Office  1 WLR 1003. The Home Office contended that if the claimants had a claim for false imprisonment, it was limited to a declaration and / or a quashing order that had to be advanced by way of judicial review rather than via a damages claim for false imprisonment and that initiation of the County Court proceedings was an abuse of process. The Home Office succeeded before the circuit judge but the Court of Appeal allowed the claimants’ appeal. The Court of Appeal emphasised that on first principles the claimants, having been deprived of their liberty, had a prima facie private law claim arising out of their detention, with the burden then lying on the Immigration officers to show the legality of the detention:
“..there is on the face of it nothing in the slightest bit peculiar about an individual bringing a private law claim for damages against an executive official who has unlawfully infringed his private rights”.
The Court of Appeal rejected the proposition that an Immigration officer enjoyed any immunity from a private law claim in tort in respect of what would normally be regarded as a prima facie unlawful act causing loss of liberty.
The judgment also went on to conclude that the Administrative Court had no jurisdiction to hear an action for damages alone. There were no facilities whereby a jury might be empanelled in the Administrative Court to try an action for damages for false imprisonment and contested actions involving a Human Rights element often required cross-examination which was more conveniently provided for outside the Administrative Court list. Given the severe difficulties over legal representation in detention centres and prisons where such representation was not readily available on the spot, compensation for unlawfully detained Asylum-seekers would be hard to come by within the strict time limits required by Civil Procedure Rules Part 54.
D v Home Office established that a private law claim will not be struck out simply because it could have been brought as a judicial review application unless the action amounts to an abuse of process, and that it is permissible to litigate public law issues in a private law claim where private law rights have been infringed and private law remedies are sought.
In the case of Hana Zewdu v SSHD - CO/6067/2013, Mr Justice Green found the Home Office unlawfully delayed reaching a decision on the claimant’s right of residence. The Secretary of State conceded she was, therefore, liable to pay damages for loss of earnings as well as damages on an aggravated basis.
Non-European Economic Area (EEA) family members of EEA workers, the self-employed, students and the self-sufficient are entitled to a right of residence in the UK, under the Immigration (European Economic Area) Regulations. Once the Home Office receives an application, it is obliged to provide immediately a Certificate of Application, which gives the bearer the right to work in the UK. The Home Office is then required to make a decision on the application within six months. Delays can result in loss of earning, delays in completing a course of study and emotional distress.
As we have mentioned in a previous article, following this decision, claimants who have been waiting for a Certificate of Application for any application for EU residence documentation for more than two weeks and/or have been waiting for a final decision on any application for EU residence documentation for more than six months should instruct their lawyer to issue a Letter Before Action.