R (on the application of Hemmati & Ors) v Secretary of State for the Home Department [2019] UKSC 56

Five asylum seekers were detained in the UK pending transfer to other EU states under the Dublin III Regulation. The Supreme Court held that the Secretary of State's policy in Chapter 55 of the EIG failed to meet Dublin III's requirement for objective criteria defined by law, rendering their detention unlawful and entitling them to damages for false imprisonment.

Facts

The five respondents were foreign nationals who entered the United Kingdom illegally and claimed asylum, having already claimed asylum in other EU member states (variously Bulgaria, Austria, Hungary and Germany). The Secretary of State invoked the Dublin III Regulation (Regulation (EU) No 604/2013) to request those states to take responsibility for the asylum claims, and each such state agreed. The respondents were detained under paragraph 16(2) of Schedule 2 to the Immigration Act 1971, pending their transfer, pursuant to the Secretary of State’s published policy in Chapter 55 of the Enforcement Instructions and Guidance (EIG). The periods of detention ranged from approximately one month to nearly four months.

At first instance, Garnham J and Irwin J largely upheld the detentions, while Mr John Howell QC (sitting as deputy High Court judge) held the fifth respondent’s detention unlawful. The Court of Appeal, by majority (Sir Terence Etherton MR and Peter Jackson LJ, Sales LJ dissenting), held all the detentions unlawful, relying heavily on the CJEU’s decision in Al Chodor (Case C-528/15).

Issues

The Supreme Court had to determine:

• Whether Chapter 55 of the EIG satisfied the requirements of articles 28 and 2(n) of the Dublin III Regulation, which permit detention only where there is a ‘significant risk of absconding’ defined by reference to ‘objective criteria defined by law’.
• If not, whether damages were payable either under domestic law for false imprisonment or under EU law pursuant to the Factortame principle.

Arguments

Secretary of State

The Secretary of State argued that Chapter 55 of the EIG, although not legislation, contained rules that were binding through settled case law requiring adherence to published policy. It provided a clear, publicly accessible statement of criteria enforceable by courts, and together with domestic case law, constituted a framework meeting the Al Chodor requirements of clarity, predictability, accessibility and protection against arbitrariness. Further, any damages claim had to be assessed under the Francovich/Factortame principles, requiring a ‘sufficiently serious’ breach. Even if unlawful, only nominal damages were warranted because detention would inevitably have occurred under the 2017 Regulations subsequently enacted.

Respondents

The respondents contended that Chapter 55 contained no reference to Dublin III, set out only general and non-exhaustive guidance, and failed to establish objective criteria for assessing the risk of absconding. A statement of policy, alterable at will by the executive, could not constitute a ‘binding provision of general application’ as required by Al Chodor. They were entitled to damages for false imprisonment under domestic law because the power to detain had been exercised outside its lawful limits.

Judgment

Lord Kitchin, with whom Lady Hale, Lord Reed, Lord Wilson and Lady Arden agreed, dismissed the Secretary of State’s appeal.

Article 28(2) and 2(n) requirements

The Court analysed the CJEU’s decision in Al Chodor, which held that articles 2(n) and 28(2), read together, require member states to establish, in a binding provision of general application, objective criteria underlying the reasons for believing an applicant may abscond. The detention must be subject to strict safeguards of legal basis, clarity, predictability, accessibility and protection against arbitrariness.

Chapter 55 of the EIG

Lord Kitchin held that Chapter 55 did not satisfy these requirements. It contained no reference to Dublin III, did not identify that significant risk of absconding was the only permissible basis for detention under that Regulation, and did not require detention to be proportional. Paragraph 55.3.1 set out a non-exhaustive list of 11 factors, only some of which could conceivably relate to absconding, with several (such as whether the subject was under 18 or had a history of torture) bearing no clear relevance. It therefore did not constitute a framework of predetermined limits, nor set out the limits of flexibility in a binding and foreseeable manner. The contrast with the subsequent 2017 Regulations (which prescribed specific mandatory criteria) was striking.

It was unnecessary to decide whether policy and public-law adherence to it could ever amount to a ‘binding provision of general application’ within article 2(n), but the Court noted powerful arguments that such a policy could not qualify, since decision-makers may depart from policy for good reason, and the Advocate General’s reasoning in Al Chodor emphasised the need for external, institutionally separate direction.

Damages

The Court held the respondents were entitled to damages for false imprisonment under domestic law. The tort has only two ingredients: the fact of imprisonment and absence of lawful authority. The power to detain under Schedule 2 of the 1971 Act was constrained by the Hardial Singh principles, the policy-adherence principle, and applicable EU law obligations by operation of section 2(1) of the European Communities Act 1972. Because Chapter 55 did not comply with articles 28(2) and 2(n), the decision to detain lay outside the scope of any lawful exercise of the statutory power.

The Secretary of State’s argument that only Francovich/Factortame damages were available was rejected. The Court applied the principles in Lumba and Kambadzi, requiring the public-law error to be material to the decision to detain; this test was clearly satisfied. The argument that EU law should displace domestic tort principles was also rejected; the power to detain was conferred by domestic statute, and the right to damages for false imprisonment does not depend upon the clarity of law nor the source of the illegality.

Nominal damages

The Secretary of State’s argument that only nominal damages were payable (because detention would inevitably have occurred under the 2017 Regulations) was rejected. In Lumba, Kambadzi and Parker v Chief Constable of Essex Police, nominal damages were appropriate where detention could have been effected lawfully under the existing legal and policy framework. It was no answer to a claim for damages to say that the detention would have been lawful had the law been different.

The proceedings were to be transferred to the County Court for assessment of quantum if not agreed.

Implications

The decision affirms that, under the Dublin III Regulation as interpreted in Al Chodor, member states wishing to detain applicants pending transfer must establish objective criteria for assessing the risk of absconding in a binding provision of general application. A non-statutory executive policy such as Chapter 55 of the EIG – particularly one not specifically addressing the Dublin III procedure and containing only general, non-exhaustive factors – does not suffice.

The ruling clarifies the interaction between EU law obligations and the domestic tort of false imprisonment: where compliance with an applicable EU measure is a condition of the lawful exercise of a statutory detention power, a failure of compliance renders the detention unlawful and actionable at common law, without need to satisfy the Francovich/Factortame ‘sufficiently serious breach’ threshold. The source of the lack of legal authority (domestic or EU) does not alter the character of the wrong.

The Court expressly left open whether a policy statement coupled with public law adherence principles could ever qualify as ‘law’ under article 2(n). The decision principally matters to detained applicants for international protection who are subject to Dublin transfers and to the government’s administration of immigration detention. Its significance lies in insisting upon genuine, transparent and binding statutory criteria for the deprivation of liberty in this context, reflecting the fundamental nature of the right to liberty under article 5 ECHR and article 6 of the Charter. The Court also reaffirmed that nominal damages in false imprisonment are confined to cases where detention could have occurred lawfully under the existing framework, not by reference to hypothetical laws later enacted.

Verdict: The Supreme Court unanimously dismissed the Secretary of State’s appeal. Chapter 55 of the EIG did not satisfy the requirements of articles 28(2) and 2(n) of the Dublin III Regulation. The detention of all five respondents was therefore unlawful, and they are entitled to damages under domestic law for false imprisonment. The proceedings were to be transferred to the County Court for assessment of quantum if not agreed.

Source: Hemmati & Ors, R (on the application of) v Secretary of State for the Home Department [2019] UKSC 56