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Aggravated damages for unlawfully detained hunger striker

Aggravated damages for unlawfully detained hunger striker

A rough sleeper from Poland has obtained extra damages for unlawful detention because he went on hunger strike in detention. Holownia v Secretary of State for the Home Department [2019] EWHC 794 (Admin) is about the appropriate level of damages for EEA nationals who were homeless and automatically assumed to be not exercising their EU treaty rights under an unlawful Home Office policy.

The claimant was a Polish national who had been working in the UK as a self-employed carpenter. He was unlawfully detained for 153 days and periodically refused food to protest against his detention.

In another recent case an EEA national who was detained because of the unlawful Home Office policy regarding rough sleepers was awarded £14,800 for 37 days of unlawful detention, which included £6,400 for the initial shock of being detained. In this case, Mrs Justice Simler awarded £32,000 basic damages, including £6,000 for initial shock. That amount is broadly in line with other cases and reflects the principle that the level of damages for each extra day of unlawful detention should reduce as the period of detention gets longer. Whether that principle is correct is a matter for debate, but the judge correctly followed Court of Appeal authority.

Encouragingly, Simler J considered whether she should award aggravated damages because the claimant had engaged in a partial hunger strike. She noted that the Home Office had adequately cared for him, but still concluded that:

On the other hand, to the extent that the hunger strike was clearly a protest against the Claimant’s detention, it is a reasonable inference that he was reacting to the detention in the only way he felt was available to him. Similarly I accept that the fact of being on hunger strike (while a personal choice for him) must have made his experience of detention worse. I accept that these factors should to an extent be reflected in the compensatory award.

The judge concluded that the claimant was entitled to an extra £5,000 because of his experience of being on hunger strike, which brought the total award to £37,000.

Unfortunately, hunger strikes occur frequently in detention, particularly among those who are unlawfully detained and feel they have no other way to voice their frustration. This decision is promising because it demonstrates that the High Court is prepared to listen and respond sensitively to the suffering experienced by detainees when awarding damages. Although the High Court is not bound by its previous decisions, Mrs Justice Simler (soon to be Lady Justice Simler) is President of the Employment Appeal Tribunal and highly experienced in awarding damages for injury to feelings. Her view is likely to command respect.

Alexander Schymyck

Alex is an LLM student at the University of Cambridge and previously worked as a Judicial Assistant at the Court of Appeal and in the Public Law Department at Duncan Lewis Solicitors.

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