£19,250 damages for 21 Days Unlawful Detention and False Imprisonment

Tarakhil v The Home Office [2015] EWHC 2845 (QB) (21 October 2015)

Introduction
1. The claimant, Zia Ul Haque Tarakhil claims damages for false imprisonment and wrongful detention and for the psychiatric consequences of that detention and aggravated damages for the high handed way that he was detained and in which his claim has been dealt with throughout by the defendant. He is an Afghan national who was detained in Immigration Detention at Dover Immigration Centre between 19 January 2012 and 9 February 2012, a total of 21 days. The defendant is the Home Office which is the Government Department responsible for the conduct of Immigration Officers and others working for it in the United Kingdom Border Agency ("UKBA") and any third party contractor undertaking immigration functions involving the claimant. In summary, the claimant contends that his detention was unlawful because there were no lawful and reasonable grounds for detaining him.

Conclusion - Detention
50. The claimant should not have been detained and the entire period of 21 days during which he was detained is a period for which he is entitled to damages for unlawful detention and false imprisonment.

Damages
51.The claimant cited a number of relevant cases from which the following principles can be drawn:

(1) The detention was unlawful from the outset with a sum of £4975 awarded for the first day, allowing for inflation since the original decision was promulgated in 1998[3].

(2) It would not be surprising if a detention of less than three days but more than two days would lead to an award, allowing for inflation since this judicial view was promulgated in 2006, of £6,000[4].

(3) A basic award for 24 days of unlawful detention of the spouse of an EEA national was set at £14,420, allowing for inflation since the original decision was promulgated in 2010[5].

(4) A global award should be made which awards an amount which, broadly, tapers so as to reduce the notional daily rate awarded the longer the unlawful detention lasts[6].

52.The claimant was, from the outset in this case very conscious that his detention was unlawful and the shock clearly profoundly affected him. The claimant's counsel submitted that, taking the authorities and the claimant's factual situation into account, that an award of £15,000 would be appropriate. I consider that to be marginally too high and I award £14,250.

Personal injury
53. The claimant was profoundly affected by his detention as his own evidence shows. He was examined by a psychiatrist who concluded that his pre-detention health was normal other than occasional nightmares and mood swings. However, he was clearly deeply shocked by his initial detention with symptoms of anxiety and fear of both detention and deportation and displayed clear signs of Adjustment Disorder with anxiety features as classified under the DSM in 5 Code 309.24. The report advised that his symptoms would place him approximately in the middle of the appropriate award range. The defendant neither called expert evidence nor challenged the claimant's expert evidence.

54, The appropriate award range published by the Judicial College Guidelines is such that the type of injury described by the claimant's psychiatrist, whose evidence I accept, warrants an award of £3,000.

Aggravated damages
55. In this case, the defendant repeatedly failed to address the legal constraints to detaining the claimant, persistently failed to explain why it was detaining him despite his on-going appeal process and failed to address his status as a prosecution witness, his Barnham status or the fact that the first available charter flight was several weeks ahead since he could not be placed on the flight due on 31 January 2012. Furthermore, the defendant did not serve any admissible evidence in either witness statement or documentary form and its records of the reasons for detention and continued detention were sparsely and wholly inadequately documented.
56.In consequence, I award a sum of £2,000 for aggravated damages.

Overall conclusion
57.The claimant's claim succeeds. He is awarded a total of £19,250 damages. To this sum, a 10% uplift should be added for all heads of damage following Simmons v Castle[7]

http://www.bailii.org/ew/cases/EWHC/QB/2015/2845.html

Right to Rent Scheme

The Minister for Immigration (James Brokenshire): I am announcing today the roll out of the second phase of the measures relating to the private rented sector as prescribed by sections 20-37 of the Immigration Act 2014, otherwise known as the Right to Rent scheme. Where these provisions apply, landlords are prohibited from renting accommodation to people who are disqualified from a right to rent by virtue of their immigration status.

The provisions will come into force across the whole of England as of 1 February 2016.

The provisions were implemented on a phased basis starting on 1 December 2014 in Birmingham, Wolverhampton, Dudley, Walsall and Sandwell, in line with the commitments made by the then Government. The impacts of the first six months of the scheme have been subject to an evaluation exercise. I have considered the findings of the evaluation and the advice of a panel of experts in arriving at this decision. The evaluation can be found at: www.gov.uk

The Government have continued to engage with the private rented sector and the new Immigration Bill 2015, introduced to Parliament on 17 September 2015, provides new powers to evict illegal immigrants and offences where unscrupulous or rogue landlords choose to flout the law and are exploiting illegal immigrants for their own gain.

This demonstrates the Government’s determination to control immigration in the interests of the whole country and in ensuring that people here unlawfully are not able to enjoy a settled life here in defiance of our laws.

Hansard: 20 Oct 2015 : Column 40WS

Surround Dungavel IRC – Shut it Down –End Detention Now

Solidarity Demonstration - Sunday 25th October 2015

1pm, Dungavel House Immigration Removal Centre ML10 6 Strathaven

NO ONE should be locked up because of their immigration status.

The UK Home Office has a racist policy of detaining migrants in profitable facilities run by multinational private security companies.  Locking people up due to their immigration status is wrong and there is no way to operate a humane or safe detention system.

The Universal Declaration of Human Rights states everyone has the right to liberty and protection from arbitrary detention. Detention incurs huge health and social costs; incarceration, especially when prolonged, causes severe psychological and physical health problems, and often leads to self-harm and suicide.  On the 28th and 29th of September there were suicide attempts within Dungavel.

Freedom of movement for all people!

Solidarity with Refugees, Migrants and Asylum Seekers Everywhere!

Location: Coaches will leave from George Square Glasgow at 11am on Sunday 25th October. Travel time to Dungavel is 1 hour. Coaches return to Glasgow for 4pm.

Coach tickets: Free for asylum seekers/refugees and anyone else who wants to be there but cant afford a ticket. Ticket £5. Donation Ticket £10. Book your ticket today from:
http://www.eventbrite.co.uk/e/surround-dungavel-1-shut-it-down-tickets-19015084630

Bring: signs, drums, things to make noise with, banners, flags - things that can be raised up high are good because its easier for people inside to see them. Don’t forget warm and waterproof clothes, water and snacks. 

Please Do Not Bring Alcohol, Drugs Or Any Object That Could Be Seen As Weapon.

Police: There is likely to be a number of police there on the day, we advise people to not speak to them, you do not have to respond to any questions. There will be a team of people who will watch police’s behaviour. There will also be an allocated team of people to talk to the police and make sure we are all ok. On the day, everyone will be given cards with information about your legal rights. Note: If you’re worried about been identified or photographed we recommend wearing a hat + scarf to cover yourself.

T-Shirts: Please bring along T-shirts to customise with messages in solidarity with the people inside Dungavel. There will be fabric pens on the coach and at the start of the demo.
Source for this message: We Will Rise we_will_rise@outlook.com
https://www.facebook.com/events/440693969389026/

Early Day Motion 561: Family Reunification For Refugees

That this House notes that refugees have a legal right under UK and international law to be reunited with their families; further notes that refugees seeking reunion are often faced with extreme levels of stress and anxiety, which are only worsened by separation and isolation from their loved ones who remain frequently in desperate and dangerous circumstances overseas; recognises that family reunification provides a safe and legal route of entry to the UK at a time of deepening concern that the Government is failing to respond appropriately to the refugee crisis by not taking-in a fair and proportionate share of refugees, both from within the EU and outside; notes that reports from the British Red Cross find that family reunion cases are not straightforward, that only those refugees with specialist legal support are successful in their applications, and that the costs are unaffordable for the vast majority of refugees; is concerned that reunification cases are inaccurately and unfairly treated as straightforward immigration cases; calls for the Government to reform and widen the definition of family under the reunion rules so that it includes children over 18 years of age, siblings, grandparents and adopted children, and allows for adults abroad to be reunited with children in the UK; urges the Government to find innovative and flexible ways for family members to apply for reunion overseas so that they are not put in harm's way; and further calls for the Government to reinstate legal aid for family reunion cases as a matter of urgency. •http://www.parliament.uk/edm/2015-16/561 House of Commons: 21/10/2015

Turgunov v. Russia (no. 15590/14) – Violation of Article 3 if Extradited

The applicant, Botir Turgunov, is a national of Kyrgyzstan who was born in 1979 and lives in St Petersburg (Russia). The case concerned his complaint that his extradition to Kyrgyzstan would expose him to the risk of ill-treatment.

Mr Turgunov, who is of Uzbek ethnic origin, left Kyrgyzstan for Russia in July 2010, following inter-ethnic clashes in the town of Osh where he lived. In April 2012 the police in Osh charged him in his absence with participation in the mass riots and several other offences. In January 2013 he was arrested in St Petersburg and subsequently remanded in custody; his detention was extended several times. In July 2013 a Russian deputy Prosecutor General granted the request of the Kyrgyz authorities for his extradition. Mr Turgunov’s appeal against that decision was rejected by the St Petersburg City Court, the decision being eventually upheld by the Supreme Court in February 2014.

Following Mr Turgunov’s request, in February 2014 the European Court of Human Rights applied an interim measure, under Rule 39 of its Rules of Court, indicating to the Russian Government that he should not be extradited for the duration of the proceedings before the Court. Both Mr Turgunov’s application for refugee status and his request for temporary asylum in Russia were rejected.

Relying in particular on Article 3 (prohibition of torture and of inhuman or degrading treatment), Mr Turgunov complained that if extradited to Kyrgyzstan he would be subjected to torture or inhuman or degrading treatment or punishment because he belonged to the Uzbek ethnic minority.

Violation of Article 3 – in the event of Mr Turgunov’s extradition to Kyrgyzstan

Interim measure (Rule 39 of the Rules of Court) – not to extradite Mr Turgunov – still in force until judgment becomes final or until further order

Just satisfaction: The Court held that its finding of a violation constituted sufficient just satisfaction for any non-pecuniary damage suffered by Mr Turgunov.

Read the full judgement:
http://hudoc.echr.coe.int/eng - {"itemid":["001-157971"]}

Asylum Research Consultancy COI Update Volume 111
This document provides an update of Country Guidance case law and UKBA publications and developments in refugee producing countries between 5th october 2015 and 19th October 2015  -
Volume 111  here . .

Asylum Seekers Face Eviction Four Weeks After Being Given Leave to Remain
People winning the right to asylum in Britain are being forced into homelessness because Home Office regulations mean they face eviction within 28 days of their application being accepted.
Charities predicted that this winter would be the worst for homelessness in decades, with the rising number of rough sleepers being exacerbated by a rule that prevents asylum seekers from completing the paperwork and organising alternative housing before being moved on from state-provided accommodation.
The Refugee Council and other charities, including the Red Cross, want the government to ease the strict rule, saying that evidence suggests that people take up to three months to find a job, somewhere to live and get their paperwork in order, often because of inefficiencies by government offices. They say that an estimated 90% of successful applicants – with no family or friends to support them here – face destitution after their claim is accepted.
Read more: Tracy McVeigh, Guardian, 17/10/2015

[Obiter: (i)             The deprivation of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizens identified in the decision in Zambrano [2011] EUECJ C-34/09 is limited to safeguarding a British citizen's EU rights as defined in Article 20.

(ii)           The provisions of reg. 15A of the Immigration (European Economic Area) Regulations 2006 as amended apply when the effect of removal of the carer of a British citizen renders the British citizen no longer able to reside in the United Kingdom or in another EEA state. This requires the carer to establish as a fact that the British citizen will be forced to leave the territory of the Union.

(iii)         The requirement is not met by an assumption that the citizen will leave and does not involve a consideration of whether it would be reasonable for the carer to leave the United Kingdom. A comparison of the British citizen's standard of living or care if the appellant remains or departs is material only in the context of whether the British citizen will leave the United Kingdom.

(iv)         The Tribunal is required to examine critically a claim that a British citizen will leave the Union if the benefits he currently receives by remaining in the United Kingdom are unlikely to be matched in the country in which he claims he will be forced to settle.]

Decision & Reasons

1. The Secretary of State appeals against two decisions of the First-tier Tribunal. Each appeal raises a similar issue. In each case, the First-tier Tribunal Judge allowed the appeal against the decision of the respondent to refuse to issue them with a derivative residence card. In doing so the Judge purported to apply the principle developed by the Court of Justice of the European Union in Ruiz Zambrano (European citizenship) [2011] EUECJ C-34/09 as incorporated into domestic United Kingdom law by the insertion of regs. 15A and 18A into the Immigration (European Economic Area) Regulations 2006.

Re-making the decisions - Ayinde
62.          Far from being unable to reside in the United Kingdom, the evidence is that the appellant needs to reside in the United Kingdom if she is to maintain the same level of care for her paranoid schizophrenia, her type II diabetes and the residual effects from the brain tumour. Her need for treatment, medication and monitoring are more likely to be better met in the United Kingdom. This leaves the tasks that are performed by the appellant in the form of routine assistance in helping her to bathe, preparing food, shopping and ensuring that the bills are paid. If these cannot be performed by carers under the supervision of social services, then she will need to go into a care home. Either way, it is simply impossible to claim that she is unable to remain in the United Kingdom once her son leaves.
Re-making the decisions - Thinjom
63.          The couple met in 2012 and married on 13 August 2012. Mr Stevens was then aged 82. Had they not married, Mr Stevens would undoubtedly have remained in the United Kingdom and, as his heath deteriorated, would have had to look to social services increasingly for help until the point was reached when he could not live on his own and would have been forced to go into residential nursing care. The sheltered accommodation in which he lives may or may not continue to be a practical solution to his needs. Prior to his marriage, Mr Stevens had been paying for a carer who visited him twice a week for two hours on each occasion. He now needs care in the daily tasks.

64.          Once again far from being unable to reside in the United Kingdom, the reality is that it is unlikely that Mr Stevens is able to reside anywhere else. He could not, realistically, hope to achieve the same level of care were he to start what would be at the age of 85 a new life in Thailand. Hence, there is no real likelihood that he would do so.

Conclusion on the re-making
65.          For these reasons, the claim that in each of these appeals the Zambrano principle should be extended to permit their carers to remain in the United Kingdom must be rejected. That, as Hickinbottom J said in Sanneh, R (on the application of) v the SS for Work and Pensions & Anor, 'is simply not how the EU works.'

 The right forum
66.          It is for these reasons that such a claim is more readily conceived in terms of Article 8. The factors that render the forced departure of a British citizen less and less likely (dependence on the raft of assistance provided by the state, the local authority and the health service) are likely to add weight to a human rights claim whilst diminishing the strength of a claim based upon forced departure. Where, however, the competing claims are expressed in the alternative, namely either I will be forced to go or it is a violation of my, and my carer's, human rights to require my carer to leave, there is plainly an inconsistency in approach which may well prove difficult to argue.

67.          In saying this, I do not seek to imply what the appropriate outcome will be in either of these two appeals. It re-enforces, however, the soundness of the respondent's approach in the third of these formerly conjoined appeals. As I said in paragraph 4 above, t he third appeal concerned the Algerian mother of a British citizen aged 3 who sought leave to remain in the United Kingdom with her son and the child's father. Although she had sought leave to remain as the carer of a Union citizen, the application was made pursuant to Article 8 of the ECHR in pursuit of a protected private and family life and not under the EEA Regulations. Sensibly, the Secretary of State agreed to make a fresh decision. Whilst significantly different on the facts, it underlines the place in the legal system where the claims of these appellants properly lie. The claims do not lie under the Immigration (European Economic Area) Regulations 2006 as amended.

Decision
In each case, the Judge made an error on a point of law and I substitute a determination dismissing each of the appeals on all the grounds advanced.
http://www.bailii.org/uk/cases/UKUT/IAC/2015/560.html