27th April 2016
Robin Tam QC successfully resists an appeal to the Supreme Court by an individual who claimed that she had been unlawfully detained pending her deportation.
Robin Tam QC represented the Home Secretary when successfully resisting an appeal to the Supreme Court by an individual who claimed that she had been unlawfully detained pending her deportation. The claimant, a Nigerian woman known as “O”, had long suffered from mental ill-health but was nevertheless detained for a long period. Her present claim concerned the last part of the period for which she was detained, up to her release on bail by the Tribunal, and in particular the time after a new medical report was obtained on her behalf which advanced a new diagnosis of her condition.
In the High Court and the Court of Appeal, she was refused permission to apply for judicial review. The Court of Appeal considered that reviews of her detention after the new medical report were flawed because they failed to deal properly with the report, but it would be disproportionate to grant her permission to apply for judicial review on that basis because she would at most receive only nominal damages.
The Supreme Court has today dismissed her appeal ( UKSC 19). The Court agreed that the detention reviews were procedurally flawed for failing to deal properly with the new medical report. But even if the report had been properly responded to by the Secretary of State, it was unrealistic to consider that she would have been released any earlier than she was. If permission to apply for judicial review had been granted, she would only have obtained a declaration that her detention was unlawful and an award of nominal damages (conventionally fixed at £1). The lower courts were therefore entitled to refuse her permission to apply for judicial review.
A secondary issue was the correctness of the Court of Appeal’s earlier decision in R (Francis) v Home Secretary  EWCA Civ 718,  1 WLR 567. This decision would, if followed, have meant that O’s detention was not unlawful despite the flawed detention reviews because the authority for detention was provided by the statute rather than by the Secretary of State’s flawed decisions. However, the Supreme Court considered that Francis was wrongly decided, and so the appeal could not be dismissed on the basis of this further reason.