The European Court of Human Rights has developed Article 5 ECHR beyond domestic law and potentially created a dramatic increase in the amount of damages payable for unlawful detention caused by a breach of detention policy. VM v United Kingdom (No. 2) (application no. 62824/16) is only a decision of the court’s First Section and will not necessarily be followed by other sections of the Strasbourg court or domestic courts, but it might herald a more rigorous approach to ensuring that the Home Office sticks to its published policy.
Background to the case
The UK Supreme Court had found that VM had been unlawfully detained because the Home Office had failed to properly apply its detention policy to her case. But it held that she would only be entitled to nominal damages.
Even if the policy had been applied properly, the Supreme Court said, VM would have been detained anyway while the Home Office arranged suitable accommodation. The court was following its earlier decision in Lumba v Secretary of State for the Home Department  UKSC 12. The Lumba judgment said, essentially, that when an unlawful detention claimant would have been detained anyway, the unlawfulness is more or less irrelevant and no compensation is due.
The European decision
In Strasbourg, VM argued that she should have been awarded substantive rather than nominal damages for the period during which she was unlawfully detained.
In a previous decision about an earlier period of unlawful detention involving the same applicant, the European Court of Human Rights held that VM was only entitled to nominal damages. However, in this latest case the court decided that she was entitled to substantive damages, stating:
The applicant accepted in the domestic proceedings that she would not have been immediately released in March 2011 even if the detention reviews had been carried out correctly (see paragraph 17 above). The Court observes that the Supreme Court found this concession was probably realistic but it considers equally that it is not possible to know when the applicant would have been released had the detention reviews been correctly conducted and the appropriate arrangements for her release made in light of the obligation identified above. In this respect, the circumstances of the period of unlawful detention in the present case are different from those examined in its previous judgment concerning the applicant, where the Court of Appeal had reassessed all the evidence in the case and had concluded that the applicant could have been detained lawfully during the relevant period (see V.M. v. the United Kingdom, cited above, § 45). What can be said in the present case is that the applicant was unlawfully detained from 4 March 2011 to 6 July 2011 due to the deficiencies in her detention reviews; the need to redress that unlawfulness was not lessened because the State did not make appropriate arrangements for her release during that period.Paragraph 39
This decision indicates that the European Court of Human Rights is less tolerant of breaches of detention policy than domestic courts.
The exact basis for the decision is unclear because in both cases concerning VM the domestic courts had accepted that she would not have been released any earlier if detention policy had been applied correctly. The only difference between the two cases is that in the earlier decision, which led to only nominal damages, the Court of Appeal had fully considered the case, whereas in the present case the Supreme Court simply accepted the applicant’s concession that she would not have been released earlier.
As a consequence of this distinction, it may now be advantageous for detainees pursuing damages for breach of detention policy to be refused permission for judicial review and be forced to apply to Strasbourg before rather than after a full hearing in the High Court. The European Court of Human Rights appears to be willing to award substantive damages for breaches of detention policy, but not when a domestic court has found that the detainee would have been detained anyway following a full hearing.
Is this a big deal?
It’s too soon to conclude that the domestic law on this issue is incompatible with Article 5 because the reasons given by the court in this case are ambiguous. But the decision suggests that the rule laid down by the Supreme Court in Lumba may one day be held to be incompatible with Article 5. If that were to happen the Home Office would finally be forced to apply its policies properly or face a huge increase in payments for unlawful detention.