Outrageous, Oppressive, and Unconstitutional Behaviour of the Home Office Wins Non- EEA Family Member Damages

The judgment in Santos, R (on the application of) v Secretary of State for the Home Department [2016] EWHC 609 (Admin) is quite lengthy, running to 163 paragraphs,    however makes most  interesting reading in relation to the issues  raised.

Via a judicial review claim, the Claimant argued that the Secretary of State acted in breach of the rights granted to him under the parent  Directive and the EEA Regulations 2006 as a family member  of an EEA national.   The Claimant claimed damages for false imprisonment and for breach of EU law. He submitted that the Secretary of State ‘s unlawful treatment of him resulted  in loss of liberty, financial loss, personal injury, pain and suffering, humiliation and distress.  The   Court found that the Secretary of State had acted  unlawfully  in breach of the Directive and the EEA Regulations 2006, in her treatment of the Claimant, a family member of a EEA national exercising Treaty rights in the UK.  In the Court’s judgment, the Secretary of State’s, “ servants or agents did treat the Claimant in an outrageously oppressive and unconstitutional way by repeatedly disregarding his EEA rights, and depriving him of his right to appeal against the decision to remove, which was the reason he was being detained”.

The total award of damages was £136,048 which comprised £76,578 for false imprisonment and £59,470 for breach of EU law.

THE  FACTS

The Claimant arrived in the UK on 3 November 2002 with entry clearance as a visitor. He remained in the UK unlawfully after the expiry of his visa. In November 2008 the Claimant met his future spouse, Claudia Oliveira Batista, who is a Portuguese national. She had been residing and working in the UK since 2007/2008. They began living together in May 2009. They became engaged in November 2009 and married on 30 April 2010, by way of a proxy marriage that took place in Brazil. They celebrated their wedding in the UK. On 19 July 2010, the Claimant applied for an EU residence card on the basis of his marriage to an EU citizen. At the same time, Ms Batista made a separate application for a registration certificate, confirming her right of residence as an EEA national exercising Treaty rights in the UK, and naming the Claimant as her spouse. Both applications were sent to the Secretary of State in the same envelope by the same consultants. On 11 August 2010, the Secretary of State sent a certificate of application  to the Claimant informing him that  until such time as  his application had been decided by the UK Border Agency,  he would  be treated for immigration purposes as a family member of a legally resident EEA national and, as such, was  free to live and work in the United Kingdom. He was informed  that his application for a residence card  should be resolved within six months from the date of application.

The parties’ relationship broke down in October 2010, and she moved out of their home in November 2010.

On 9 November 2010 the Secretary of State received a letter from Ms Batista withdrawing her application.  On 24 November 2010 the Secretary of State recorded Ms Batista’s application as withdrawn.

On 29 January 2012, the Claimant was arrested as an over-stayer and he was detained by the Secretary of State with a view to his removal from the UK. After his first judicial review claim failed, he filed this application for judicial review on 11 June 2012, in which he challenged the Secretary of State’s failure to make a decision granting him a residence card since 19 July 2010, and in particular the Secretary of State’s  most recent decision letters of 12 March, 27 April and 10 May 2012. He challenged the lawfulness of his proposed removal and his detention.

By way of interim relief, the Administrative  Court  granted a stay on removal on 25 June 2012. On 30 June 2012, the Secretary of  State  granted the claimant  temporary admission, subject to conditions, and released him from detention.

Pursuant to an order of the court at an oral permission hearing on 18 October 2012, the Claimant made a further application for a residence card on 16 November 2012. The Claimant’s application for a residence card was refused by the Secretary of State on 11 July 2013, on the ground that the Claimant had not submitted a valid identity card or passport for Ms Batista, and therefore had failed to establish that he was a family member of an EEA national. The Claimant had submitted the photocopy of Ms Batista’s Portuguese identity card which had previously been submitted in July 2010, but which had since expired.

The Claimant appealed to the First Tier Tribunal and his appeal was allowed in a determination promulgated on 12 March 2014. At the hearing, the Home Office Presenting Officer did not seek to defend the decision, nor did he challenge the Claimant’s evidence.

The Claimant was issued with a residence card by the Secretary of State some two months later, on 21 May 2014 recognising his right to reside in the UK as a family member of an EU national.

THE COURT’S CONSIDERATIONS AND  VIEWS

• Justice Lang considered that the issue of a formal Certificate of Application to the Claimant on 11 August 2010, permitting him to reside and work in the UK, meant that the Secretary of State was at that date satisfied that the Claimant’s application was complete and he had submitted the supporting evidence which was required, comprising originals, not copy documents. If that had not been the case, the application would have been returned to him, explaining what further evidence was required.
• It was noted that the First Tier Judge had observed that it was also apparent that when the Claimant’s EEA Spouse withdrew her application for a Registration Certificate, the Secretary of State treated such withdrawal as also a withdrawal of the Claimant’s application for a residence card. In Justice Lang’s view, in so far as the Secretary of State did treat Ms Batista’s withdrawal as having the effect of withdrawing the Claimant’s application, this was a serious error. It was noted that it was confirmed that the Secretary of State accepted that the Claimant’s application for a residence card was a separate application to the application for a certificate made by Ms Batista, and ought not to have been treated as automatically withdrawn when she withdrew her application.
• The Court noted the Secretary of State ‘s letter of 24 November 2010, referring to a recent request for a residence card, this letter stated that the Claimant had submitted documents which were insufficient to establish that he had a right of residence under the 2006 Regulations. The letter required a valid passport or national identity card for the claimant and a valid passport or national identity card for the EEA national sponsor. The letter noted that the Claimant had separated from his EEA Spouse and stated that a Non-EEA national who is the spouse of an EEA national does not cease to be a family member in the event of marital breakdown/separation as long as the EEA national continues to exercise Treaty rights in the United Kingdom. The letter stated that the next application required an EEA sponsor. Justice Lang stated that the Secretary of State’s letter disclosed several errors. The letter overlooked or ignored the fact that the Claimant had already made an application for a residence card on 19 July 2010 which the Secretary of State had not yet determined. Indeed, the six month period for determination of that application had not yet expired. The Secretary of State had already sent the Claimant a Certificate of Application. The Secretary of State was however noted to correctly observe in her letter that the Claimant continued to be a family member under the EEA Regulations regardless of the separation from his wife.
• In response to a letter from those representing the Claimant at the time, on 28 June 2011, the Secretary of State wrote returning the Claimant’s documents, using the same pro forma template as the letter of 24 November 2010. The letter stated that the documents submitted were “insufficient to establish that your client has a right of residence under the 2006 Regulations” and so they were being returned with the letter, without any “formal determination” having been made. The Claimant was invited to re-apply with the additional documents needed. On this occasion, the Secretary of State stated “to establish a right of residence … the following evidence will be needed ….evidence of an original divorce decree absolute“. It was noted that by this stage that the Secretary of State was no longer requesting evidence of identity of the Claimant or Ms Batista, nor evidence of Ms Batista’s employment. In Justice Lang’s   judgment, this letter disclosed many of the same errors as the letter of 24 November 2010. She stated that the application made on 19 July 2010, which had been accompanied by the original documents required to demonstrate the Claimant’s right of residence, was again overlooked or ignored. It was now long overdue for determination. The issue of the Certificate of Application was also overlooked or ignored. In the Court’s view, it was clear from the terms of the legal representatives   letter and the absence of any fresh application form, that the Claimant was still pursuing his original application, albeit in the altered circumstances of his separation from his wife. The Court stated that even if the Secretary of State believed this was a fresh application, the failure to make any determination upon it deprived the Claimant of the opportunity of an appeal to the FTT which could have investigated what had occurred. Justice Lang also found surprising that the Secretary of State did not explain as it had done in its previous letter, that a non-EEA national who is the spouse of an EEA national does not cease to be a family member in the event of marital breakdown/separation, and so the Claimant could be eligible for a residence card, whether or not he was divorced.
• The Court noted that in late 2011, the Claimant, who was then employed as a sous chef, was offered a better job as a head chef by a previous employer, and so he gave notice to terminate his employment. However, the Secretary of State informed the new employer that the Claimant was not entitled to work in the UK, and so they could not employ him. The Claimant experienced the same problem with other prospective employers. He adduced in evidence a letter from the Secretary of State dated 20 December 2011 to a prospective   employer which stated: “I have checked our records and I can confirm, based on the evidence we currently have, that this individual is not currently entitled to work in the United Kingdom on the basis of an outstanding application for a residence card as the family member of a European national.” The Court stated that the Certificate of Application issued to the Claimant on 11 August 2010 (which ought to have been on the Claimant’s UKBA file) stated that until his application for a residence card had been decided he would be treated for immigration purposes as a family member of a legally resident EEA national and, as such, would be “free to live and work in the United Kingdom”. Although the letter envisaged that a residence card would be issued within six months of application, the Secretary of State had failed to do so, and so it was unfair to deprive the Claimant of the benefit of a certificate. The Court noted that even on the Secretary of State ‘s case that a fresh application for a residence card had been made, superseding the July 2010 application, the Secretary of State ‘s actions in returning the Claimant’s applications on 24 November 2010 and 28 June 2011, instead of determining them, left him in a legal limbo where he had no means of challenging the Secretary of State actions by way of an appeal to the FTT and yet he was being prevented from working, in breach of his rights as the family member of an EEA national exercising Treaty rights.
• The Court noted that on 29 January 2012, the Claimant was arrested, detained and served with a notice of liability to removal from the UK. In form IS151A, the immigration officer stated he was satisfied that the Claimant was a person in respect of whom removal directions might be given, in accordance with section 10 Immigration and Asylum Act 1999 as “a person who has failed to observe a condition of leave to enter or remain, or remains beyond the time limited by the leave”. The specific reason given was “overstayed their period of granted leave”. Justice Lang stated that she was satisfied that the Claimant had been exercising Treaty rights as a family member since the date of his marriage in April 2010 and it followed that he was entitled to reside in the UK when he was detained in January 2012. The Court noted that it had never been alleged that the Claimant entered into a sham marriage, or that Ms Batista was not genuinely exercising Treaty rights. Importantly, at that stage, there had never been any formal determination of his application for a residence card – it had never been refused, merely returned. In the Court’s view, on the available evidence, an immigration officer applying regulation 24 of the EEA Regulations 2006, could not have had “reasonable grounds for suspecting” that the Claimant was “someone who may be removed from the United Kingdom under regulation 19(3)” which provides that a family member may be removed if “he does not have or ceases to have a right to reside” in the UK. Equally, on the basis of this evidence, the Court did not consider that an immigration officer could reasonably have believed that there were grounds for removal and detention under section 10 IAA 1999, paragraph 16(2) of Schedule 2 to the IA 1971 and section 62 NIAA 2002, which in any event were not the statutory powers to be applied in this case.
• The Court stated that the documents disclosed by the Secretary of State indicated that she made the decisions to detain and remove applying domestic immigration law applicable to a foreign national over-stayer without any EEA rights, when his case ought to have been considered within the framework of the EEA Regulations 2006. The Secretary of State had sufficient information before her to know that this was contrary to law and her own policy, because when he applied for a residence card in July 2010 he had submitted sufficient evidence to establish that he was the spouse of an EEA national residing and working in the UK. Even if the Secretary of State considered that his right might have lapsed, for example, if Ms Batista had left the UK, the Claimant’s position still fell to be considered under the more favourable provisions in the EEA Regulations 2006.
• The Court noted that Regulation 24(6) provides that a person in the circumstances of the Claimant should be allowed one month to leave the UK beginning on the date on which he is notified of the decision to remove him. The Claimant’s detention was wrongly authorised on the basis that his removal was imminent, when in fact his removal could not be effected for at least one month after he was first detained.
• The Court stated that Claimant was entitled to a right of appeal against any decision to remove him (Articles 15 & 31 of the Directive and regulation 26) which had to be formally notified to him (Articles 15 & 30 of the Directive and the Immigration (Notices) Regulations 2003). It was noted that the Secretary of State had a pro forma decision notice for use in EEA cases which set out the rights of appeal (IS 151A EEA) which ought to have been used in the Claimant’s case, instead of the standard IS 151A.
• Justice Lang stated that if the Secretary of State had considered the Claimant’s case under the EEA Regulations 2006, it is most unlikely that he would have been detained, or remained detained for 5 months, because of the Secretary State ‘s policy not to detain EEA nationals and their family members pending determination of their entitlement to remain.
• The Court observed that at the relevant time, the Secretary of State’s “European Casework Instructions” (“ECI”) Chapter 8, “Enforcement Action taken against EEA nationals and family members” advised, in paragraph 6, that where a person is liable to removal under regulation 19(3)(a) of the EEA Regulations, as a person who does not have a right to reside in the UK, he should be served with form IS151A (EEA), and he will then normally be granted temporary admission, subject to conditions. A decision to remove must be notified on form IS151B, which gives him notice of his in-country right to appeal, under regulation 26. He cannot be removed while an appeal is pending. Once a decision to remove has been made, in accordance with regulation 24(6), a person liable to removal should be granted a period of 1 month to leave the country voluntarily. In the Court’s judgment, the Secretary of State failed to follow and apply the policy set out in the European Casework Instructions, by not granting the Claimant a right of appeal and not detaining him pending a final decision.
• The Court referred to Chapter 55 of the “Enforcement Instructions and Guidance” (“EIG”), in force at the relevant time, paragraph 55.9.2 which provided that if an immigration offender is married to an EEA national, detention should not be considered unless there is strong evidence available that the EEA national spouse is no longer exercising treaty rights in the UK, or if it can be proved that the marriage was one of convenience and the parties had no intention of living together as man and wife from the outset of the marriage. The Court stated that it was apparent that the UKBA did not have any evidence, let alone “strong evidence”, that Ms Batista was no longer exercising treaty rights in the UK or that the marriage was not genuine.
• It was noted that the Claimant had applied for bail, but the Secretary of State opposed it, and it was refused on 15 and 23 February 2012. Justice Lang considered that Secretary of State’s submission to the bail Immigration Judge was inaccurate and misleading in several respects such as failing to inform the Judge that the Claimant and his wife made separate applications on 19 July 2010. Only the Claimant applied for a residence card, and he made the application in his own right. It was not withdrawn when his wife withdrew her application for a certificate. Although a Certificate of Application had been issued, confirming his right to reside in the UK, the application had never been determined by the Secretary of State and was still outstanding.
• In relation to a letter from the Secretary of State dated 11 May 2012, it was noted that it stated that the Claimant’s case had been “substantively considered on multiple occasions by the [UKBA] and rejected”. The Court considered that the Secretary of State had never substantively considered his application for a residence card – his first application on 19 July 2010 was never determined and subsequent applications were “returned”, expressly on the basis that no formal determination had been made. They were returned on the grounds that the Secretary of State required the submission of further original documents, but all of the documents required had already been submitted on 19 July 2010.
• It was noted that On 11 May 2012 the Claimant wrote to the Secretary of State enclosing evidence that his wife continued to work in the UK, namely, a letter from her employer, dated 11 May 2012 which confirmed that Claudia Batista was employed full time and that she was employed on a permanent basis and has been with the company since February 2009. The Court noted that despite the letters and the up-to-date evidence of Ms Batista’s residence and work in the UK, which demonstrated that the Claimant was a family member of a EEA national exercising Treaty rights, the Secretary of State continued to seek to remove the Claimant, in breach of the Directive, the EEA Regulations 2006 and her own policies.
• The Court noted that the Claimant was only released upon stringent conditions which unlawfully restricted his right to work and reside in the UK. He was barred from working and from accessing any public funds or other assistance that would be available to him as a person lawfully resident in the UK. He was required to report to the authorities regularly and effectively prevented from travelling.

SECRETARY OF STATE’S FAILURES, UNLAWFUL BREACHES OF THE PARENT DIRECTIVE AND THE 2006  EEA REGULATIONS  AND DAMAGES

• Failure to Issue the Claimant a Residence Card for nearly 4years from date of initial application:

Failing to issue a residence card to him, in breach of Articles 9 and 10 and regulation 17, at any time between the date of his first application on 19 July 2010 and the eventual issue of a residence card on 21 May 2014, in circumstances where 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.

• Failure to Determine the Initial Application within 6months:

Failing to determine his application dated 19 July 2010 within six months, as required by Article 10(1) and regulation 17(3).

• Failure to Offer One Month Grace Period to Leave the UK:

Failing to offer him a one month’s grace period within which to leave the UK voluntarily, pursuant to Article 30(3) and regulation 24(6).

• Non- Issue of lawful Notice to Remove Denying Claimant a Right to Appeal:

Failing to issue a lawful notice of decision on 29 January 2012 with respect to the decision to remove him from the UK and denying him a right of appeal to the FTT against the decision to remove him, granted by Articles 15 and 31 and regulation 26.

• Failure to Determine Applications for Residence Card Resulting in Denial of a Right of Appeal

Failing to determine his applications for a residence card on 19 July 2010, 12 March 2012, 27 April 2012 and 28 June 2011. These failures resulted in the Claimant being denied:

a)a formal notification of the reasons for the decision and rights of appeal, granted by Articles 15 and 30 and regulations 4 and 5 of the Immigration (Notices) Regulations 2003; and

b)a right of appeal to the FTT, granted by Articles 15 and 31 and regulation 26.

• Failure to Determine Residence Card Application Within 6 Months And Issue A Certificate of Application:

In respect of his residence card application dated 16 November 2012:

1. a) failing to issue a certificate of application which allowed him to work; and
2. b) failing to determine it within six months, as required by Article 10(1) and regulation 17(3).

• Inability To Obtain Employment:

On various dates in the final quarter of 2011, the Secretary of State informing prospective employers that he was not currently entitled to work in the UK, which prevented him from obtaining employment.

During 2011, the Claimant had been employed as a sous chef, earning an average of £372.25 gross and £299 net per week. The Claimant’s financial losses began on or about 1 October 2011 when, having left his employment as a sous chef to take up a new job as head chef, UKBA informed his prospective employer that he was not entitled to work in the UK and the job fell through. He met with the same difficulty everywhere else he applied for work. He had no means of support and had to move to Reading to stay with a friend who was able to offer him free accommodation and food. He planned to set up a car wash business and took out a £10,000 loan to set it up. His business plans were interrupted by his arrest and detention, meaning that the loan was wasted, and he was then pursued by debt collection agencies for not making the required re-payments on his loan. His credit rating was severely affected. As a result he has since been refused any form of credit, including a mobile phone contract.

• Detention With a View To Removal In Neglect of Rights as a Non- EEA Family Member:

From 29 January to 30 June 2012, seeking to remove the Claimant from the UK and detaining him 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.

During his arrest and interview under caution, the Claimant tried his utmost to explain his status to the officers, but he was repeatedly ignored, and told that as he was an immigration offender because he was not in a subsisting relationship, and he was an over-stayer.

Justice Lang observed that unlawful immigration detention constitutes the tort of false imprisonment, for which an award of damages may be made. The tort of false imprisonment is committed when a claimant is directly and intentionally imprisoned by a defendant, without lawful justification. The burden of showing that there is lawful justification for the detention lies on the Defendant: see R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245 per Lord Dyson at [65]. The tort is actionable per se regardless of whether the claimant suffers any harm.  It was noted that in Lumba, the Supreme Court held, by a majority, that breach of a public law duty on the part of a person authorising detention is capable of rendering that detention unlawful and the fact that the detainee would have been detained lawfully in any event did not affect the Secretary of State’s liability for false imprisonment. The fact that the detainee would have been lawfully detained was relevant to damages rather than liability. Lord Dyson, in considering the power to detain under Schedule 3 to the Immigration Act 1971, identified the basis upon which a detention decision could be held to be unlawful, and the consequences of such a finding, at [66]:

“A purported authority to detain may be impugned either because the defendant acted in excess of jurisdiction (in the narrow sense of jurisdiction) or because such jurisdiction was wrongly exercised. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 established that both species of error render an executive act ultra vires, unlawful and a nullity. In the present context, there is in principle no difference between (i) a detention which is unlawful because there was no statutory power to detain and (ii) a detention which is unlawful because the decision to detain, although authorised by statute, was made in breach of a rule of public law. For example, if the decision to detain is unreasonable in the Wednesbury sense, it is unlawful and a nullity. The importance of Anisminic is that it established that there was a single category of errors of law, all of which rendered a decision ultra vires: see Boddington v British Transport Police [1999] 2 AC 143, 158D-E.”

Justice Lang stated that  she was  satisfied that the Claimant was falsely imprisoned because there was not, at any stage, any lawful authority for his detention and his detention was in breach of the Secretary of State ‘s policies. This is not a case in which he could otherwise have been lawfully detained. Therefore he was  entitled to compensatory damages, not merely nominal damages.

Justice Lang explained that General damages are intended to compensate for the loss of liberty; the shock, humiliation and loss of reputation; and for any psychiatric or physical injury caused by the detention. She took into account the matters set out in the Claimant’s witness statement.  Under this head, Justice Lang  award £40,000 in damages.

Justice Lang stated that Aggravated damages are awarded to compensate for additional humiliation and injury to dignity suffered which mean that a basic award is not sufficient compensation. In her judgment, the treatment of the Claimant by the Secretary of State did merit an award of aggravated damages in the sum of £10,000. Justice Lang considered  that the way in which the officers disregarded  the Claimant’s  repeated attempts to explain his legitimate status in the UK under EEA law, dismissing him as an immigration offender, was offensive and intensely humiliating. She  also considered that his treatment at Colnbrook as set out in his witness statement   was so degrading that it offended his personal dignity.

Justice Lang   clarified that Exemplary damages are recoverable where there has been oppressive, arbitrary or unconstitutional conduct by government servants. In Muuse v Secretary of State for the Home Department [2010] EWCA Civ 453, the Court of Appeal reviewed the authorities of Rookes v Barnard [1964] 1 AC 1129, Kuddus v Chief Constable of Leicestershire [2002] 2 AC 122 and Holden v Chief Constable of Lancashire [1987] QB 380. In Muuse, the Court concluded:

“72. There are a number of factors that show that the unlawful imprisonment of Mr Muuse in this case was not merely unconstitutional but an arbitrary exercise of executive power which was outrageous. It called for the award of exemplary damages by way of punishment, to deter and to vindicate the strength of the law.”

In Justice Lang’s judgment, the Secretary of State  servants or agents did treat the Claimant in an outrageously oppressive and unconstitutional way by repeatedly disregarding his EEA rights, and depriving him of his right to appeal against the decision to remove, which was the reason he was being detained. By failing to make decisions on the applications for residence cards, on 12 March and 27 April 2012, the  Secretary of State prevented the Claimant from appealing to an independent tribunal to establish his legal right to reside in the UK. The  Secretary of State conceded at the hearing before  Justice Lang that it was unlikely he would have been detained while an appeal was pending, as the delay in removal would make the deportation unreasonable (applying Hardial Singh principles). In Justice Lang’s view, failing to give full and accurate information to the court in the first judicial review claim and on the bail applications was also conduct which merited an award of exemplary damages.

In Justice Lang’s view, the appropriate award of exemplary damages was £20,000.

• Failure to Apply Own Enforcement Policy in Relation to Non – EEA Family Members:

Failing to apply her own policy on enforcement action against family members of EEA nationals set out in the ECI and EIG.

The Claimant was unlawfully detained for 154 days. The Claimant stated that he was shocked and frightened when he was detained in January 2012. His description of his time in detention as per his witness statement was as follows:

“……never felt such helplessness in my whole life, before this traumatic event….As a result of my detention, I severed contact with my 13 years old son, as I could not bring myself to explaining my predicament to him. Furthermore I could not provide the monthly remittance support I did before detention……..My relationship with my friends was severely strained. I refused to accept visits, as I could not endure the humiliation of having to wear an orange apron during visit……In detention my physical, mental and emotional health took a downward spiral. I started experiencing severe back pains and skin condition, which was never treated adequately……One of the other problems I encountered was the constant removal directions I was served with. In some instances I was served with 2 per week……I was transferred to Colnbrook, where the treatment I received was worst than any I previously experienced…. I was locked up for 23 hours a day, refused any association, and the ability to get towel and shower…….No human being, however horrendous their immigration history, deserve to be subjected to the conditions I was subjected to at Colnbrook.”

• Placing Restrictions on Right to Residence Following Release from Detention:

Placing restrictions on his right to reside after 30 June 2012, including preventing him from working; preventing him from accessing any public funds or other assistance that would be available to him as a person lawfully resident in the UK; requiring him to report and preventing him from travelling.

After his release, the Claimant was prohibited from working or claiming any form of public assistance or services. He had no means of financial support, and was entirely reliant upon handouts from friends and charities.

He was emotionally withdrawn and depressed. He sought treatment for his back pain which had arisen whilst in detention (a medical report was adduced in evidence). He could not pay for the treatment, as he was prohibited from working, and although his friend contributed to the cost initially, he could not afford to continue. The local health centre refused to allow him to register because he could not prove his right of residence. In 2013, his friend had to return to Brazil and the Claimant was destitute and homeless. A local church had to provide for him.

Even after he was granted a residence card, on 21 May 2014, he found it difficult to obtain work because he had been out of the workplace for some time, lacked recent work experience, and experienced a loss of self-confidence. His career as a chef had been brought to a halt by the actions of the Defendant. He spent time doing voluntary work at his local church, seeking to repay them for the support the church gave him when he was destitute.

Justice Lang explained that Special damages are awarded for financial loss flowing from the tort. The Claimant was unable to work during his detention. He had previously been earning an average of £299 net per week. There were plenty of employment opportunities for him as a chef in London. She was satisfied that, if he had not been detained, and the UKBA had not refused to allow him to work, he would have been able to earn at least £299 net per week.  She awarded  him 22 weeks at £299 which totalled £6,578.

DAMAGES FOR BREACH OF EU LAW

In relation to damages for breach of EU law, Justice Lang noted the landmark case of Francovich v Italian Republic [1991] ECR I-5357,  where the CJEU held that, as a matter of principle, it was inherent in the system of EU law that a Member State be held liable for loss caused to individuals as a result of a breach of EU law for which it could be held responsible. The principle is not limited to situations where a Member State has failed to implement a directive. A Member State may also be liable in damages where it adopts legislation or takes decisions or fails to act in a manner which violates a person’s directly effective right under EU law.  It has been established in a series of cases, including Brasserie du Pecheur S v Federal Republic of Germany C-46/93 & C-48/93 and R v Secretary of State for Transport ex parte Factortame Ltd [1996] ECR I-1029, that three conditions must be satisfied before liability in damages may arise. First, the rule of law which has been infringed must have been intended to confer rights on individuals. Second, the breach must be sufficiently serious. Third, there must be a direct causal link between the breach and the damage suffered. Although the Member State has a discretion in determining the type of damages awarded, the rules must not be less favourable than for equivalent domestic claims and must not make it excessively difficult to obtain compensation, loss of profit cannot be excluded as a head of damage.

Justice Lang stated that she had considered the  account of the law in Lewis: Judicial Remedies in Public Law (5^th ed.), Chapter 17. In her judgment,  the three conditions for liability were  met in this case. The right to free movement and to issue of a residence card, and the procedural safeguards which ensure that those rights are effective in Member States, are clearly rules of law intended to confer rights on individuals. Breaches of those rules are sufficiently serious to warrant state liability. In reaching this conclusion, justice Lang stated that she had been  assisted by recent cases in Ireland and Scotland in which courts have awarded damages for breach of Directive 2004/38/EC: Ogieriakhi v Minister for Justice, Ireland [2014] IEHC 582; Raducan v Minister for Justice, Ireland [2011] IEHC 224; In the Petition of Adebayo Aina [2015] CSOH 158 (Scotland).

Justice Lang considered that the Claimant had suffered damage and loss as a direct result of the  Secretary of State’s breach of the Directive. She noted that exemplary damages are, in principle, available for a breach of EU law and in her judgment, this was  a case in which the Secretary of   State  had behaved in an outrageous, oppressive and unconstitutional manner. Although there may have been an initial misunderstanding or mistake on her part about the status of the Claimant’s 2010 application once his wife withdrew her application, any such error could have been easily remedied by the end of 2010. Instead, there was a sustained and deliberate refusal to give effect to the Claimant’s EU rights, over several years, during which time the Secretary of State displayed a blatant disregard for the law. Even after  the Court had granted a stay on removal in June 2012, and the Secretary of State had  released him, she deprived him of the right to work and the benefits of lawful residence, for nearly two years, and when called to account by the First  Tier Tribunal, she was unable to put forward any justification for her refusal of a residence card. Justice Lang  awarded £25,000 by way of exemplary damages in respect of the breaches prior to and after his detention.

Justice Lang was satisfied that the Claimant was employed as a chef earning an average of £299 net per week in 2011, and that he would have continued to earn at least that amount, if the Secretary of State  had not prevented him from working. Employment as a chef would have been readily available in London. The period of loss (excluding the period of detention) was 1 October 2011 to 29 January 2012 and then from 1 July 2012 to 21 May 2014. This amounted to 115 weeks and 2 days, totalling £34,470. Justice Lang awarded the amount claimed in full.  She considered that this  claim was not excessive – no claim had  been made for interest or an inflation uplift, nor for the period after 21 May 2014 when the Claimant struggled to find employment.

Justice Lang, however did not consider it appropriate to award aggravated damages in this case, as the factors relied upon by the Claimant in support an award of aggravated damages have already been taken into account in the award of exemplary damages and for loss of earnings.

The total award of damages was £136,048 which comprised  £76,578 for false imprisonment and £59,470 for breach of EU law.

CONCLUSION

Non- EEA family members applying for  residence cards  or permanent  residence cards are now  required to  undertake  biometrics   and in practice,  it appears that it  is only after  this exercise  has been undertaken that the Home office issue a Certificate  of Application. A considerable period of delay then passes before the Certificate itself  is issued, meanwhile the applicant is left vulnerable  to dismissal by an  existing  employer for failure to evidence their continued right to work in the UK.  During the period between application and the time the Certificate  of Application  is issued, upon an employer requesting written confirmation from the Home Office  of the applicant’s continued right to  work in the UK, in practise the Secretary  State can indeed be found unashamedly stating that  the applicant has no right to work. There  is thus a significant  risk of  suspension or dismissal  from  work arising from the  delayed actions of the Secretary of State in issuing a Certificate of Application.

This judgment is most welcome and perhaps might  now prompt the Secretary  of State  to not only  expeditiously  decide EEA applications within 6months  but also  to issue Certificates of Applications  even at the same time that  the biometrics letter is issued.