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On appeal from: [2018] EWCA Civ 2122

The five respondents arrived in the United Kingdom illegally and claimed asylum. Each of the respondents was detained for a period of time pending his or her removal from the United Kingdom pursuant to the Immigration Act 1971 of Schedule 2 paragraph 16(2). The respondents challenged the lawfulness of their detention by bringing claims against the Secretary of State for the Home Department.

The Supreme Court unanimously dismissed the appeal. It held that the first question for the Court was whether the detention of each respondent was lawful, given that article 28 of the Regulation permits detention where there is a “significant risk of absconding”. The second question was whether if the detention was not lawful, whether damages would be payable either under domestic law for false (or wrongful) imprisonment, or pursuant to what is known as the Factortame principle.

The Court held that the majority in the Court of Appeal were right to hold that the respondents were wrongfully detained. The respondents were entitled to compensation under domestic law for any loss that the wrongful detention has caused them. The Secretary of State’s submission that the respondents should only be entitled to nominal damages was rejected. It held that the County Court will assess the amount of damages, if it cannot be agreed.

For judgment, please download:  [2019] UKSC 56

For Court’s Press Summary, please download: [2019] UKSC 56

For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (29 July morning session) (29 July afternoon session) (30 July morning session)