The Claimant in this case is one of many rough sleepers who have been detained by the Secretary of State for the Home Department (SSHD) for an alleged breach of treaty rights under Immigration (EEA) Regulations 2006 (the EEA Regulations). Ruling in this case, Mrs Justice Simler DBE found it in favour of the Claimant, determining that he had been unlawfully detained between 12 April 2017 and 11 September 2017, and as such he is entitled to £37,000 in damages.
History of Case
Mr Holownia is the Claimant in his case. He is a Polish national who came to the UK in 1993 – 1994 on a visitor’s visa. Whilst he was initially recognised as an overstayer, his status was later settled. Since then he has worked as a carpenter and in the construction industry, paying his taxes, though there was a period within which he is known to have not been working.
Mr Holownia was first identified by police as sleeping rough in April 2015. It was not until January 2016 that he was then encountered by immigration officials and an IS.151A (EEA) (a notice to a person liable to removal) was prepared, though records indicate that it was not in fact served on him. It was at this point he was given temporary release with instruction to report on 5 February 2016 – it was during these meetings that he was invited to bring any evidence to prove that he was acting within his treaty rights in order to appeal his removal.
It is recorded that he did not attend the meeting and made no application to appeal.
Fast forward to April 2017 at which point Mr Holownia was found on his work site sleeping rough and re-detained at Brook House IRC. His medical assessment recorded asthma and an historic suicide attempt he made 3 years earlier on the advent of his divorce when he was first made homeless.
His removal was scheduled for 28 April 2017, but on refusing this it was never attempted and he attended a meeting where his non-compliance was discussed. It was at this point that he asserted he wished to appeal the removal directions and prove that he was lawfully in the UK under the EEA Regulations.
Despite this, a later GCID entry on 24 May 2017 claims that he was still liable to removal for breaching his freedom of movement rights as an EEA national and his removal was re-scheduled for 8 June 2017.
Duncan Lewis’ Representation
Having instructed Duncan Lewis, his legal representative sent a pre-action protocol (PAP) letter (dated 5 June 2017) setting out the Claimant's history in the UK, including his 25 year residence here. It was our submissions that:
- His removal from the UK would be in breach of the EEA Regulations,
- He had a right of permanent residence in the UK, and
- He had been exercising Treaty rights while in the UK.
As a result, his removal was halted once more. However, the request detailed in the PAP letter to have Mr Holownia released from detention was not actioned and he went on hunger strike in protest.
Following a further refusal by the SSHD to accept Mr Holownia’s human right’s claim, his legal representative responded with another PAP letter on 16 June 2017 ratifying that his detention and pending removal remain unlawful as an EEA national exercising his treaty rights. All the while, Mr Holownia continued to strike intermittently, and he had to receive dental surgery after a prolonged complaint of tooth ache went unresolved and became infected.
Having gained no progress following the previous PAP letter, another dated 6 July 2017 was sent confirming that evidence of his having worked for 5 years entitled him to permanent residency and an urgent response was sought. During this wait period, another letter detailing an incident whereby a Home Office staff member ‘touched our client inappropriately’
explaining that his vulnerability made him unsuitable for detention and a temporary release into section 4 bail accommodation was requested.
In response the SSHD claimed that as an EEA citizen, being released onto the streets would not breach Mr Holownia’s rights given that he could seek employment.
Duncan Lewis made a claim for judicial review, filed on 20 July 2017 and Davies J subsequently imposed a stay on the Claimant's removal on 23 August 2017. Mr Holownia was unconditionally released from detention on 11 September 2017.
Having been detained for just under 5 months where his removal was not actioned, Mr Holownia brought a claim for unlawful detention against the SSHD.
In light of the judgment in Gureckis
, released on 14 December 2017, further correspondence was submitted to the SSHD. Gureckis provided case law on the treatment of EEA rough sleepers by the SSHD with Lang J ruling in para. 113 that the SSHD:
‘"[…]could not justify its less favourable treatment of EEA rough sleepers on the grounds that they were suspected of abusing their rights to freedom of movement and residence, in breach of the 2016 Regulations. The justification upon which the Defendant relied was unlawful."’
It was after this that the SSHD acknowledged liability of the unlawful detention of Mr Holownia on 17 August 2018.
In deciding the appropriate damages to award, Mrs Justice Simler DBE determined in para. 72:
‘Accordingly, I must make a judgment as to the amount of compensation to which the Claimant is entitled for his loss of liberty for 153 days and the injury to feelings he suffered in the light of my view of the facts and as compounded in the ways I have accepted above. The award must put him in the position he would have been in had the tort not been committed, as closely as money can do. It must not be disproportionate to general damages payable in cases of personal injury, and should bear some consistency to other similar awards. Doing the best I can, I assess basic damages at £32,000 including the initial shock (which I have assessed as £6000). To reflect the 'hunger strike' element (whether as basic or aggravated damages) in addition I award damages of £5000. This makes a global compensatory award of £37,000 which I regard as appropriate and proportionate on the facts of this case.’
Whilst this ruling is a great success, the question of damages for Mr Holownia’s psychiatric injury remains to be resolved. The Claim for damages for psychiatric injury and consequent special damages is adjourned and reserved to Mrs Justice Simler DBE. The parties are now invited to agree any consequential orders with directions to proceed with the psychiatric injury claim.
Nonetheless, it will have an impact on future cases of this sort and help to prevent the SSHD from misapplying their power to detain EEA national rough sleepers.
Mr Holownia instructed Marina Khan
of Duncan Lewis’ immigration and public law team, with Stephen Knight
of One Pump Court acting as Counsel.