Jonathan Metzer represented a successful claimant in a claim for damages for unlawful detention before HHJ Bloom, sitting at Central London County Court.
The Claimant had entered the UK from Bangladesh in 2010 on a student visa, but after his leave to remain expired in 2014 he had overstayed and failed to report with the Home Office as required, until he was encountered and tried but failed to escape during an enforcement visit at a restaurant in January 2017. The Claimant claimed asylum in the UK whilst he was in detention, and in April a Rule 35 report was provided to the Home Office by a GP which stated that the Claimant had scars which were possibly consistent with past torture. This resulted in him being classified as an Adult at Risk at Level 2 under relevant Home Office policy. Later in April, the Claimant’s asylum claim was refused, but with a right to appeal this decision from within the UK, which was anticipated to take many weeks to be resolved. However, he continued to be held in detention until he was granted bail by the First-tier Tribunal on 15th August 2017.
In circumstances where the Claimant does not currently have immigration status or a pending application to regularise his status in the UK, he did not attend the trial due to a subjective fear that he might be detained. However, the legal framework places the burden of proof on the Home Office to justify detention and the Court was able to determine the issues primarily with reference to the evidence of the senior Home Office witness and the relevant documents.
After a two-day trial, HHJ Bloom found that from 18th May 2017 the Claimant should have been released from detention in circumstances where his pending right of appeal gave him an incentive to report in accordance with bail conditions and evidence had been provided to show that he could live at a fixed address with a friend who promised to support him. As such, whilst it was found still to be likely that the Claimant would abscond, these factors meant that it was no longer “highly likely” that he would not be removable unless he was detained, as required under the Adults at Risk policy for a person in the Claimant’s circumstances. It was also found that the anticipated length of time to resolve the Claimant’s appeal and effect his removal from the UK meant that the proposed period of detention had become unreasonable at this time. Therefore, the Claimant was detained unlawfully from this point for a period of 89 days. He was awarded £20,000 in damages.
Jonathan was instructed by Golam Tanvir Khan and Zotan Das of Hubers Law.
