Adegboyega v Secretary of State for the Home Department [2024] EWHC 2365 (KB) (15 September 2024)
In Mr Adegboyega's case, the SSHD was ordered to pay over £203,995.24 in damages. A Nigerian national, Mr Adegboyega was unlawfully detained at Brook House Immigration Removal Centre for 88 days in 2017 despite having the right to remain in the UK as the spouse of an EEA national. The damages included compensation for the arbitrary and outrageous exercise of executive power, breaches of article 3 of the ECHR due to the poor conditions at the centre, and the post-traumatic stress disorder the claimant suffered as a result of his detention. A Panorama undercover investigation later raised concerns about the conditions at Brook House and the treatment of detainees and an inquiry report published in 2023 confirmed that there had been systemic failings. HHJ Richard Roberts considered various claims for damages against the SSHD following Mr Adegboyega's unlawful detention at Brook House IRC. Mr Adegboyega sought damages for (i) his unlawful detention at Brook House for 88 days between 28 April 2017 and 24 July 2017, (ii) trespass to the person involving an incident in his cell on 5 June 2017, (iii) violation of his rights under article 3 during the period of unlawful detention, (iv) psychiatric injury suffered as a result of his unlawful detention, (v) breach of his rights under Directive 2004/38/EC and the Immigration (European Economic Area) Regulations 2006, and (vi) violation of his rights under article 8 of the ECHR.
HHJ Richard Roberts assessed damages and addressed unlawful detention (basic award, aggravated damages, exemplary damages and trespass to the person) breach of article 3, Psychiatric injury, damages for cognitive behavioural therapy and breaches of the 2006 Regulations. As to staffing and culture, the report findings in relation to contracted service provider staff behaviour and culture were shocking and unacceptable. As to the weight to be attached to Brook House Inquiry report it was hard to see how it could be contended that the court should not place weight on the findings made by the Brook House Inquiry. Yet, when considering specific incidents, such as Mr Adegboyega's claim for trespass to the person on 5 June 2017, and the question of whether he had suffered psychiatric injury, the court had to reach its own findings based upon the evidence. The court stated that the damages claim for psychiatric injury was decided solely on the lay and expert evidence it heard in this case. It was ironic that the SSHD argued that the case could have proceeded without the Brook House Inquiry report when the Defendant obtained the adjournment of the trial because the findings of the Inquiry were directly relevant to Mr Adegboyega's claim. His counsel Mr Zainul Jafferji submitted that the court should place weight upon the findings in the Brook House Inquiry report because they had been made following an exhaustive four-year inquiry. The submission was accepted by the court.
Damages in Mr Adegboyega's case
The court found as to the basic award that cases for unlawful detention were fact sensitive and damages should not be assessed mechanistically. Double counting should be avoided, and the court had to be aware that it was making separate awards for psychiatric injury and breach of article 3. HHJ Richard Roberts explained that the court generally applied a progressively reducing scale of awards as time elapsed during unlawful detention. But that did not apply in this case as Mr Adegboyega's psychological injury and distress remained the same throughout his detention, as did the threat of deportation: the court considered the effects of R (Diop) v SSHD [2018] EWHC 3420 (Admin).
In light of cases such as MK (Algeria) v SSHD [2010] EWCA Civ 980, AXD v The Home Office [2016] EWHC 1617 (QB), Thompson v Commissioner of Police [1998] QB 498 and R (Diop), HHJ Richard Roberts held that:
118. Compensatory damages are intended to compensate for the loss of liberty, the shock, humiliation and loss of reputation … The comparable cases are illustrative only and should not be regarded as providing any clear framework or form of restraint. Cases for unlawful detention are fact sensitive … I should not assess the damages mechanistically by fixing a rigid figure to be awarded for each day of incarceration. The daily rates which can be calculated from other awards and the levels of awards for injured feelings and for general damages in personal injury claims, are by way of cross-check only.
Mr Adegboyega, was a man of good character, who had never been in prison or detention, was falsely imprisoned for 88 days, from 28 April 2017 to 24 July 2017. This was a case of "initial shock". The award of £3,000 for the first 24 hours—which was proposed by the Court of Appeal in Thompson—would be updated to £8,197.
HHJ Richard Roberts was mindful of the need to avoid double counting and he took into account that he was making separate awards for psychiatric injury and also for breach of article 3 of the ECHR. The Consultant Psychiatrists' joint statement given by Dr Das and Professor Elliott was clear that Mr Adegboyega's experiences while in detention in Brook House were psychologically traumatic and threatening to him over a prolonged period. So HHJ Richard Roberts held that:
121. Whilst generally a Court has regard to a progressively reducing scale of awards as time elapses during unlawful detention, in my judgment that applies in this case with less force because, as in R (Diop) v SSHD(supra), the Claimant's psychological injury and distress remained the same throughout his detention: the egregious conditions and ill treatment which he experienced at Brook House remained the same throughout his unlawful detention, and he was threatened with deportation throughout his detention. The Claimant's removal was only deferred by the Defendant on 23 May 2017 due to a lack of escorts.
122. In my view, the appropriate figure for basic compensatory damages for unlawful detention is £35,000.
Next the court addressed aggravated damages. HHJ Richard Roberts held that the SSHD had dealt with Mr Adegboyega's detention in a high-handed and oppressive manner. The SSHD had totally failed to consider evidence outlining his right to remain in the UK and had detained him without prior notification. Overall, the SSHD's conduct of the litigation was also questionable, with misleading legal submissions and a refusal to make interim payments. The court considered Deptka and another v SSHD [2019] EWHC 503 and held that additional humiliation and injury to dignity merited an award of £15,000 aggravated damages in favour of Mr Adegboyega.
As to exemplary damages for wrongful detention, the court recalled the classic exposition of the law on exemplary damages given by Lord Devlin in Rookes v Barnard [1964] AC 1129 where his Lordship categorised exemplary damages under different heads such as (i) oppressive, arbitrary or unconstitutional action by the servants of the government and (ii) the defendant's conduct has been calculated by him to make a profit (not limited to money making in the strict sense) which may well exceed the compensation payable and took the view that "Exemplary damages can properly be awarded whenever it is necessary to teach a wrongdoer that tort does not pay".
Muuse v SSHD [2009] EWHC 1886 (QB) was a case about a Somalia national who later became a Dutch citizen. Following lawful imprisonment, he had been wrongly detained for a period of 128 days pending consideration of deportation. He therefore faced a risk of wrongful deportation. Given that the claimant was lawfully detained, this was not a case of initial shock. He received basic damages of £25,000 which updated to £47,520 and it was Thomas LJ's considered point of view that Lord Devlin's emphasis on oppressiveness arbitrariness or unconstitutionality must be read in line with Lord Hutton's observation in Kuddus v Chief Constable of Leicestershire [2002] AC 122 that the conduct had to be "outrageous" and to be such that it called for exemplary damages to mark disapproval, to deter and to vindicate the strength of the law. There is no need for this to be qualified by further looking for malice, fraud, insolence cruelty or similar specific conduct. There was no authority supporting the further criteria. Mr Z Jafferji argued for Mr Adegboyega that he was entitled to an award for exemplary damages because the SSHD wrongly treated him as an overstayer, detained him whereas he clearly posed a low risk of absconding, failed to afford him 30 days to leave the UK voluntarily, breached the policy guidance with respect to detaining the spouse of a Union citizen, failed to acknowledge his right of residence under the 2006 regulations despite evidence being provided, failed to provide him with a right of appeal and so forth. As to the decision awarding exemplary damages for wrongful detention, taking the above factors into account, HHJ Richard Roberts held that:
140. I find that the unlawful imprisonment of the Claimant was not merely unconstitutional but an arbitrary exercise of executive power which was outrageous.
141. In short, there was a wholesale failure to comply with the law relating to the spouse of an EEA national exercising their treaty rights. This failure can only be described as outrageous. It goes beyond being unconstitutional and was arbitrary. The Defendant's Rachel Green, SEO Team Manager, admitted in an internal email of 16 January 2018 that there was no good reason for rejecting the documents provided by the Claimant's solicitors in their letter dated 14 November 2016.
142. In my view, the appropriate award in this case for exemplary damages for unlawful detention is £25,000.
Next, HHJ Richard Roberts proceeded to examine Mr Adegboyega's case as to trespass to the person. Bearing in mind that the trespass to the person took between 35 seconds and 69 seconds, and involved no injury, HHJ Richard Roberts accepted the SSHD counsel's submissions and held that the appropriate award for general damages for trespass to the person was £250.
As to breaches of article 3 of the ECHR, the court found that Mr Adegboyega had proved on the balance of probabilities that the ill treatment to which he was subjected to when he was unlawfully detained at Brook House had cumulatively attained the minimum level of severity of inhuman and degrading treatment.
The following factors were taken into consideration: (i) he had been locked in his cell for 12 hours a day, (ii) there was a lack of privacy and ventilation in the toilet, along with dirt and staining, (iii) significant illicit drug use by detainees with no attempt to bring it under control, (iv) use of bad and abusive language by staff, (v) failures to provide adequate supervision, break up fights and come to the assistance of detainees who required medical assistance, and (vi) the breaches were systemic, endemic and enabled by senior managers. An award of damages of £26,000 was just, fair and reasonable in Mr Adegboyega's case. The court accepted his evidence in his witness statement that he was kept in prison-like conditions, which were oppressive and made him feel humiliated. As to psychiatric injury, on the balance of probabilities, Mr Adegboyega had suffered a moderate PTSD as a result of his unlawful detention and he remained at risk of future relapse. He fell within band (c) of the moderate band of the Judicial College Guidelines for post-traumatic stress disorder and was entitled to general damages for pain, suffering and loss of amenities of £25,000.
On the issue of damages for cognitive behavioural therapy, the court awarded 16 sessions of cognitive behavioural therapy, totalling £4,000. As to a breach of EEA Regulations the SSHD had conceded that he was entitled to substantive damages for breach of the EEA Regulations. Mr Adegboyega's damages for loss of earnings between November 2015 and January 2018 were £38,955. In relation to exemplary damages, the SSHD had behaved in an outrageous, oppressive and unconstitutional manner in respect of the EEA rights of Mr Adegboyega and there was a sustained and deliberate refusal to give effect to those rights over several years, during which time the SSHD displayed a blatant disregard for the law. The court judged that such unlawful action called for an award of exemplary damages of £30,000 by way of punishment, to deter, and to vindicate the strength of the law. HHJ Richard Roberts observed that the SSHD refused to make a voluntary interim payment, and an order had to be obtained from the court. He held that:
289. I find that the Defendant has behaved in an outrageous, oppressive and unconstitutional manner in respect of the Claimant's EEA rights, for the reasons set out above. As in the case of Santos (supra), there was a sustained and deliberate refusal to give effect to the Claimant's EEA rights over several years, during which time the Defendant displayed a blatant disregard for the law. This unlawful action calls for an award of exemplary damages by way of punishment, to deter, and to vindicate the strength of the law. In my view the appropriate award of exemplary damages is £30,000.
The court held that it was inappropriate to award aggravated damages as the factors relied upon by Mr Adegboyega had already been taken into account in the award of exemplary damages for breach of his EEA rights and for loss of earnings. As to breach of article 8 of the ECHR, the court held that article 8 was engaged and had been infringed.
But the court held that compensation for the violation of article 8 had already been met by the awards of basic, aggravated and exemplary damages for unlawful detention when he was unlawfully detained between 28 April 2017 and 24 July 2017; the award of damages for trespass to the person; and the award of exemplary damages for loss of EEA rights and accordingly, it would be double counting to make an award of damages for the violation of Mr Adegboyega's article 8 rights.
Comment
The comments here are a modification of Mr Zainul Jafferji's insightful points on this groundbreaking case on damages. He is quite thrilled with the result. Key takeaways are as follows. This is the first finding in the UK that detention conditions had breached article 3 without there being a mental health element prior to detention that was then not properly managed in detention. Likewise, it is also the first time it was held that the conditions of detention and experiences in detention caused PTSD.
The SSHD's conduct since Mr Adegboyega challenged his detention and asserted breach of his EU law rights demonstrates that there is no contrition or desire to learn lessons. The public statement published subsequent to the Brook House Inquiry report conflicts starkly with the SSHD's conduct of the defence in this case. No apology has been extended to Mr Adegboyega despite his victimisation by an institutionally racist system in which officials are designed to punish foreigners in general and black people in particular.
The government fought to keep the Brook House Inquiry findings out of evidence, despite having previously stated to the court that these findings were relevant to the outcome of the case. The SSHD failed to discharge the duty of candour in earlier proceedings.
The damages award is around £100,000 for 88 days of detention. This is because over and above the award of basic compensatory, aggravated and exemplary damages, the article 3 damages relate to detention and the PTSD damages relate at least in part to detention. So the proper quantum for false imprisonment is extremely fact specific—a very high award can be made for a relatively short period of detention. Tapering of damages after initial shock in the first 24 hours is not to be taken as a given. Circumstances are crucial in that regard. The quantum of exemplary damages to punish the Home Office for its conduct is very high—reflecting the appalling behaviour overall. Findings have been made that the Home Office repeatedly misled the court.