Supreme Court dismisses State’s appeal against €7,500 damages to asylum seeker

The Supreme Court has dismissed an appeal by the Garda Commissioner and the State against an award of €7,500 compensatory damages made to an asylum seeker for being unlawfully imprisoned for 26 days.

The five-judge court rejected the appellants’ principle argument that an unlawfully detained person should be refused compensatory damages if it can be shown, had they not been unlawfully detained, they could and would have been lawfully detained.

To find in the appellants’ favour would devalue the remedy for the tort of false imprisonment and detract from the inherent importance of personal liberty and respect for the rule of law, which are “key ingredients in any free and democratic society”, said Mr Justice Gerard Hogan.

The rulings of the High Court and the Court of Appeal were upheld.

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The man, who arrived here in 2008, initially claimed he was from Sierra Leone, but it appeared he was Nigerian. He was refused asylum, and later, while his Supreme Court appeal was pending, his subsidiary protection application was also rejected.

He dismissed contentions the man suffered no real loss because it was “inevitable” he would have been lawfully detained from August 1st, 2011, if gardaí knew the necessary recitals for a detention order section 5.2 of the Immigration Act of 2004. He would have suffered a loss of liberty regardless, so he should be entitled only to nominal damages, the appellants argued.

The judge said this “but for” argument succeeded in the UK Supreme Court, which in 2011 awarded two immigration detainees nominal damages of £1 each for being illegally imprisoned for two years under a secret Government policy. The token compensation reflected the court’s belief that the men would have been imprisoned in any event under other laws.

Mr Justice Hogan took a different view, considering nominal damages were sufficient only for the most technical or fleeting instances of false imprisonment. His conclusion is supported by constitutional considerations applicable in this state, he added.

The court also dismissed the man’s cross-appeal which contended the High Court’s award was inadequate.

While Ms Justice Mary Faherty awarded a sum that was “in some respects restrained and modest”, it was not insignificant compensation, the judge said.

He also found the man “failed to exercise reasonable care for his own protection”, knowing well he was a migrant in the State with an uncertain, even precarious status. The plaintiff unilaterally left the State without permission from the Minister for Justice and Equalities and his conduct rendered him liable to be arrested under the Immigration Acts when he travelled by bus from Belfast to Dublin, the judge went on.

This, of course, did not entitle gardaí to detain him pursuant to a defective warrant, Mr Justice Hogan added.

Applying principles of contributory negligence, the man cannot be entitled to the full measure of damages for false imprisonment “as if he had done nothing to bring about this state of affairs”, he held.

There was “no doubt” the man’s “unreasonable and unsatisfactory” conduct, specifically his lack of credibility in dealing with gardaí in 2011 and in his evidence to the High Court, was a significant factor in reducing the final award.

But for this behaviour, the sum awarded would “doubtless have been appreciably higher”.

Chief Justice Donal O’Donnell, Ms Justice Elizabeth Dunne, Ms Justice Iseult O’Malley and Ms Justice Marie Baker indicated their agreement with the ruling.