C4/2016/3153, C4/2016/3325 & C4/2017/1759
ON APPEAL FROM THE HIGH COURT (ADMINISTRATIVE COURT)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SALES
LORD JUSTICE PETER JACKSON
| The Queen on the application of:
|- and -
|The Secretary of State for the Home Department
The Queen on the application of SS
|The Secretary of State for the Home Department
Hugh Southey QC and Greg Σ Ceallaigh (instructed by Duncan Lewis Solicitors) for Mr Abdulkadir and Mr Mohammed
Nathalie Lieven QC and Irena Sabic (instructed by Duncan Lewis Solicitors) for SS
Jonathan Swift QC, Alan Payne and Julie Anderson (instructed by the Government Legal Department) for the Secretary of State
Hearing dates: 26 to 28 June 2018
Crown Copyright ©
Lord Justice Sales:
(1) Whether the Hardial Singh principles and/or the Secretary of State's published policy in Chapter 55 of his Enforcement Instructions and Guidance ("EIG") satisfied the requirements of Article 28 and Article 2(n) of Dublin III in relation to the periods of detention of the appellants.
(2) If not, are damages payable in respect of the detention of the appellants either for the tort of false imprisonment (i.e. under domestic law) or pursuant to EU law under the principle established by the ECJ in the Factortame case (Joined Cases C-46/93 and C-48/93, Brasserie du Pκcheur S.A. v Federal Republic of Germany and R v Secretary of State for Transport, ex p. Factortame Ltd (No. 4)  QB 404), whereby damages are recoverable for a "sufficiently serious" breach of EU law?
The legislative framework
"If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A or 12 to 14 [i.e. directions for removal], that person may be detained under the authority of an immigration officer pending
(a) a decision whether or not to give such directions;
(b) his removal in pursuance of such directions."
"(9) In the light of the results of the evaluations undertaken of the implementation of the first-phase instruments, it is appropriate, at this stage, to confirm the principles underlying [Council Regulation (EC) No 343/2003 of 18 February 2003] establishing the criteria and mechanisms for determining the member state responsible for examining an asylum application lodged in one of the member states by a third-country national , while making the necessary improvements, in the light of experience, to the effectiveness of the Dublin system and the protection granted to applicants under that system. Given that a well-functioning Dublin system is essential for the [Common European Asylum System (CEAS)], its principles and functioning should be reviewed as other components of the CEAS and Union solidarity tools are built up. A comprehensive 'fitness check' should be foreseen by conducting an evidence-based review covering the legal, economic and social effects of the Dublin system, including its effects on fundamental rights."
"(20) The detention of applicants should be applied in accordance with the underlying principle that a person should not be held in detention for the sole reason that he or she is seeking international protection. Detention should be for as short a period as possible and subject to the principles of necessity and proportionality. In particular, the detention of applicants must be in accordance with article 31 of the Geneva Convention. The procedures provided for under this Regulation in respect of a detained person should be applied as a matter of priority, within the shortest possible deadlines. As regards the general guarantees governing detention, as well as detention conditions, where appropriate, member states should apply the provisions of [Parliament and Council Directive 2013/33/EU of 26 June 2013 laying down standards for the reception of applicants for international protection ] also to persons detained on the basis of this Regulation."
1. Member States shall not hold a person in detention for the sole reason that he or she is subject to the procedure established by this Regulation.
2. When there is a significant risk of absconding, Member States may detain the person concerned in order to secure transfer procedures in accordance with this Regulation, on the basis of an individual assessment and only in so far as detention is proportional and other less coercive alternative measures cannot be applied effectively.
3. Detention shall be for as short a period as possible and shall be for no longer than the time reasonably necessary to fulfil the required administrative procedures with due diligence until the transfer under this Regulation is carried out.
Where a person is detained pursuant to this Article, the period for submitting a take charge or take back request shall not exceed one month from the lodging of the application. The Member State carrying out the procedure in accordance with this Regulation shall ask for an urgent reply in such cases. Such reply shall be given within two weeks of receipt of the request. Failure to reply within the two-week period shall be tantamount to accepting the request and shall entail the obligation to take charge or take back the person, including the obligation to provide for proper arrangements for arrival.
Where a person is detained pursuant to this Article, the transfer of that person from the requesting Member State to the Member State responsible shall be carried out as soon as practically possible, and at the latest within six weeks of the implicit or explicit acceptance of the request by another Member State to take charge or to take back the person concerned or of the moment when the appeal or review no longer has a suspensive effect in accordance with Article 27(3).
When the requesting Member State fails to comply with the deadlines for submitting a take charge or take back request or where the transfer does not take place within the period of six weeks referred to in the third subparagraph, the person shall no longer be detained. Articles 21, 23, 24 and 29 shall continue to apply accordingly.
4. As regards the detention conditions and the guarantees applicable to persons detained, in order to secure the transfer procedures to the Member State responsible, Articles 9, 10 and 11 of Directive 2013/33/EU shall apply."
"'risk of absconding' means the existence of reasons in an individual case, which are based on objective criteria defined by law, to believe that an applicant or a third-country national or a stateless person who is subject to a transfer procedure may abscond."
The Secretary of State's policy in relation to detention pending removal: the Enforcement Instructions and Guidance
"55. Detention and Temporary Release
The power to detain must be retained in the interest of maintaining effective immigration control. However, there is a presumption in favour of temporary admission or release and, wherever possible, alternative to detention are used (see 55.20 and chapter 57). Detention is most usually appropriate:
- to effect removal;
- initially to establish a person's identity or basis of claim, or
- where there is reason to believe that the person will fail to comply with any conditions attached to the grant of temporary admission or release.
To be lawful, detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law but must also accord with stated policy . . .
55.1.3. Use of detention
Detention must be used sparingly, and for the shortest period necessary. It is not an effective use of detention space to detain people for lengthy periods if it would be practical to effect detention later in the process, for example once any rights of appeal have been exhausted if that is likely to be protracted and/or there are no other factors present arguing more strongly in favour of detention. All other things being equal, a person who has an appeal pending or representations outstanding might have relatively more incentive to comply with any restrictions imposed, if released, than one who does not and is imminently removable (see also 55.14).
55.3 Decision to detain (excluding criminal casework cases)
1. There is a presumption in favour of temporary admission or temporary release there must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified.
2. All reasonable alternatives to detention must be considered before detention is authorised.
3. Each case must be considered on its individual merits, including consideration of the duty to have regard to the need to safeguard and promote the welfare of any children involved.
55.3.1. Factors influencing a decision to detain
All relevant factors must be taken into account when considering the need for initial or continued detention, including:
- What is the likelihood of the person being removed and, if so, after what timescale?
- Is there any evidence of previous absconding?
- Is there any evidence of a previous failure to comply with conditions of temporary release or bail?
- Has the subject taken part in a determined attempt to breach the immigration laws? (For example, entry in breach of a deportation order, attempted or actual clandestine entry).
- Is there a previous history of complying with the requirements of immigration control? (For example, by applying for a visa or further leave).
- What are the person's ties with the UK? Are there close relatives (including dependants) here? Does anyone rely on the person for support? If the dependent is a child or vulnerable adult, do they depend heavily on public welfare services for their daily care needs in lieu of support from the detainee? Does the person have a settled address/employment?
- What are the individual's expectations about the outcome of the case? Are there factors such as an outstanding appeal, an application for judicial review or representations which might afford more incentive to keep in touch than if such factors were not present? (See also 55.14).
- Is there a risk of offending or harm to the public (this requires consideration of the likelihood of harm and the seriousness of the harm if the person does offend)?
- Is the subject under 18?
- Does the subject have a history of torture?
- Does the subject have a history of physical or mental ill health?
(See also sections 55.3.2 Further guidance on deciding to detain in criminal casework cases, 55.6 detention forms, 55.7 detention procedures, 55.9 special cases and 55.10 persons considered unsuitable for detention).
Once detention has been authorised, it must be kept under close review to ensure that it continues to be justified."
- You have failed to observe the United Kingdom immigration laws by entering by actual clandestine means
- You have not produced satisfactory evidence of your identity, nationality or lawful basis to remain in the United Kingdom
- You do not have enough close ties to make it likely that you will stay in one place."
A further detention review dated 8 December 2015 repeated these points.
The proceedings and the judgments below
"63. In the course of argument I put to Mr Chirico [for the appellants] that Article 28(1) appeared to me to mean that a Member State could not hold a person in detention simply because he was subject to the Dublin III procedures. Mr Chirico agreed. I suggested that that carried with it the implication that, if their detention was justified on other grounds under national law, Article 28 did not make that detention unlawful. Mr Chirico agreed that that might flow from Article 28(1) if read alone, but he said such an interpretation could not survive consideration of Article 28(2).
64. I disagree. Further reflection has confirmed me in the view I expressed as to the natural reading of Article 28(1). And if that is right, I fail to see how Article 28(2) has caused the radical transformation of English domestic law governing the removal of non-UK citizens for which Mr Chirico contends. Article 28(2), in my judgment, applies in the circumstances covered by Article 28(1), namely where the detention is solely for the purpose of a removal under Dublin III and now when the detention is authorised under some free-standing domestic law provision.
65. The Immigration Act 1971 provides that a person who does not have current valid leave to remain is subject to administrative removal. The Claimants fall into that category. As noted above, the 1971 Act gives powers of detention provided by paragraph 16(2) of Schedule 2. That was the power exercised in the case of these Claimants. The fact that the [Secretary of State] then decided to employ the Dublin III provisions to effect removal to Bulgaria does not affect the legality of the detention. Article 28 governs and conditions the exercise of powers to detain when Dublin III is the source of the power to detain and remove; it does not not abolish the pre-existing power under English domestic law to detain a non-UK citizen with no right to enter or remain in the UK pending their removal by whatever lawful means are available to the [Secretary of State]".
" There is no obligation on [the Secretary of State] to release from detention simply because proceedings have been begun. The commencement of proceedings may require [the Secretary of State] to reassess the position but, first, she must have a reasonable period in which to do that and, second, she may nonetheless come to the conclusion, depending on the circumstances of the case and the nature of the challenge, that removal can still be achieved in a reasonable period."
"Article 28 governs detention in order to secure transfer procedures in accordance with Dublin III and it confers a power to do so (as the references in paragraph 3 of that article to persons 'detained pursuant to this article' makes plain). It is not merely concerned to impose limitations on other powers (as Ms Sabic submitted). As the Advocate-General said in paragraph  of her Opinion in Al Chodor, 'article 28(2) of the Dublin III Regulation authorises Member States to detain applicants, provided that three conditions are met."
"It makes no difference whether or not it was considered that there was a significant risk of him absconding. If it was considered that there was not such a risk, his detention was unlawful by virtue of Article 28.1. If it was considered that there was, it was still unlawful, as Al Chodor shows, as there were then no objective criteria for determining the risk established in a binding provision of general application."
Al Chodor: the Advocate General's Opinion ("AGO") and the judgment
"The police shall detain a foreign national who has entered or stayed in the Czech Republic illegally for the period of time necessarily required in order to secure transfer procedures in accordance with directly applicable legislation of the European Union."
"21. In that regard, [the referring court] points out that the language versions of article 2(n) of the Dublin III Regulation diverge. While the French- and German-language versions of that provision require a definition, laid down in legislation, of the objective criteria for the purposes of assessing the risk of absconding, other language versions require a definition of those criteria "by law (in the general sense)", with the result that the meaning of the term "defined by law" does not follow clearly from the wording of that provision. Furthermore, the referring court notes that the European Court of Human Rights interprets the term "law" broadly, in so far as, for that court, that term is not limited solely to legislation, but also includes other sources of law: Kruslin v France (1990) 12 EHRR 547, para 29. In the context of the detention of persons who are staying illegally, it is clear from Mooren v Germany (2009) 50 EHRR 23, paras 76 and 9097, that it is necessary to assess the quality of the legal basis, in particular in terms of clarity, accessibility and predictability.
22. Accordingly, the referring court is uncertain whether the recognition by its settled case law of objective criteria on the basis of which the detention of persons pursuant to paragraph 129 of the Law on the residence of foreign nationals may be carried out can meet the requirement of a definition "by law" within the meaning of article 2(n) of the Dublin III Regulation, in so far as that case law confirms a consistent administrative practice of the Foreigners Police section which is characterised by the absence of arbitrary elements, and by predictability and an individual assessment in each case."
"I would observe that, in its judgment of 11 April 2013, Firoz Muneer v Belgium (CE:ECHR:2013: 0411) §59 and 60), the European Court of Human Rights held that established case-law constituted a sufficient legal basis for prolonging the detention of a person under Article 5(1)(f) of the ECHR [Article 5(1)(f) provides that a person may be deprived of liberty in accordance with a procedure prescribed by law in relation to "the lawful arrest or detention of a person against whom action is being taken with a view to deportation or extradition"]. However, I am unaware of any case-law in which the European Court of Human Rights has regarded consistent administrative practice as a sufficient legal basis for interference with a fundamental right."
"37. In that regard, it is clear from article 52(1) of the Charter that any limitation on the exercise of that right must be provided for by law and must respect the essence of that right and be subject to the principle of proportionality. In so far as the Charter contains rights which correspond to rights guaranteed by the Human Rights Convention, article 52(3) of the Charter provides that the meaning and scope of those rights must be the same as those laid down by that Convention, while specifying that EU law may provide more extensive protection. For the purpose of interpreting article 6 of the Charter, account must therefore be taken of article 5 of the Human Rights Convention as the minimum threshold of protection.
38. According to the European Court of Human Rights, any deprivation of liberty must be lawful not only in the sense that it must have a legal basis in national law, but also that lawfulness concerns the quality of the law and implies that a national law authorising the deprivation of liberty must be sufficiently accessible, precise and foreseeable in its application in order to avoid all risk of arbitrariness: see Del Rνo Prada v Spain (2013) 58 EHRR 37, para 125.
39. Furthermore, according to the case law of the Court of Justice in that regard, it must be noted that the objective of the safeguards relating to liberty, such as those enshrined in both article 6 of the Charter and article 5 of the Human Rights Convention, consists in particular in the protection of the individual against arbitrariness. Thus, if the execution of a measure depriving a person of liberty is to be in keeping with the objective of protecting the individual from arbitrariness, this means, in particular, that there can be no element of bad faith or deception on the part of the authorities: see N's case  1 WLR 3027, para 81.
40. It follows from the foregoing that the detention of applicants, constituting a serious interference with those applicants' right to liberty, is subject to compliance with strict safeguards, namely the presence of a legal basis, clarity, predictability, accessibility and protection against arbitrariness.
41. With regard to the first of those safeguards, it must be recalled that the limitation on the exercise of the right to liberty is based, in the present case, on article 28(2) of the Dublin III Regulation, read in conjunction with article 2(n) thereof, which is a legislative act of the European Union. The latter provision refers, in turn, to national law for the definition of the objective criteria indicating the presence of a risk of absconding. In that context, the question arises as to what type of provision addresses the other safeguards, namely those of clarity, predictability, accessibility and protection against arbitrariness.
42. In that regard, as was noted by Advocate General Saugmandsgaard Ψe in point 63 of his opinion EU:C:2016:865, it is important that the individual discretion enjoyed by the authorities concerned pursuant to article 28(2) of the Dublin III Regulation, read in conjunction with article 2(n) thereof, in relation to the existence of a risk of absconding, should be exercised within a framework of certain predetermined limits. Accordingly, it is essential that the criteria which define the existence of such a risk, which constitute the basis for detention, are defined clearly by an act which is binding and foreseeable in its application.
43. Taking account of the purpose of the provisions concerned, and in the light of the high level of protection which follows from their context, only a provision of general application could meet the requirements of clarity, predictability, accessibility and, in particular, protection against arbitrariness.
44. The adoption of rules of general application provides the necessary guarantees in so far as such wording sets out the limits of the flexibility of those authorities in the assessment of the circumstances of each specific case in a manner that is binding and known in advance. Furthermore, as Advocate General Saugmandsgaard Ψe noted in points 81 and 82 of his opinion EU:C:2016:865, criteria established by a binding provision are best placed for the external direction of the discretion of those authorities for the purposes of protecting applicants against arbitrary deprivations of liberty.
45 It follows that article 2(n) and article 28(2) of the Dublin III Regulation, read in conjunction, must be interpreted as requiring that the objective criteria underlying the reasons for believing that an applicant may abscond must be established in a binding provision of general application. In any event, settled case law confirming a consistent administrative practice on the part of the Foreigners Police section, such as in the main proceedings in the present case, cannot suffice.
46 In the absence of those criteria in such a provision, as in the main proceedings in the present case, the detention must be declared unlawful, which leads to the inapplicability of article 28(2) of the Dublin III Regulation."
Issue (1): compliance with Article 2(n) and Article 28
" The procedure adopted by the Trust does not permit arbitrary or random decision-making. The rules are accessible, foreseeable and predictable. "
Issue (2): Damages
The application of the Hardial Singh principles in respect of Mr Hemmati and Mr Khalili
Sir Terence Etherton MR and Lord Justice Peter Jackson:
We are grateful to Sales LJ for his statement of the facts and his comprehensive analysis of the legal issues. We shall adopt the same abbreviations as are contained in his judgment.
(1) whether the Hardial Singh principles and/the Secretary of State's published policy in Chapter 55 of the EIG satisfied the requirements of Article 28 and Article 2(n) in relation to the period of detention of the appellants;
(2) if not, whether damages are payable in respect of the detention of the appellants either for the tort of false imprisonment (i.e under domestic law) or under the Factortame principle that damages are recoverable for a "sufficiently serious" breach of EU law.
The requirements of Article 28 and Article 2(n)
"(1) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose.
(2) The deportee may only be detained for a period that is reasonable in all the circumstances.
(3) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention.
(4) The Secretary of State should act with reasonable diligence and expedition to effect removal."
"The purpose of the criteria is to limit the basis upon which the determination of risk may be made; their existence provides sufficient guarantee in terms of legal certainty and ensures that the discretion enjoyed by the individual authorities responsible for applying the criteria for assessing the abscond risk is exercised within a framework of certain pre-determined markers."
"81. The adoption of legislation, in addition to providing advantages in terms of legal certainty, offers additional assurances in terms of external control of the discretion of the administrative and judicial authorities responsible for assessing the risk of absconding and, where appropriate, ordering the detention of applicants."
82. Given the particularly serious nature of the interference with the fundamental right to liberty represented by a detention order and the EU legislature's desire to limit that interference to exceptional circumstances, the discretion of those authorities should be circumscribed in such a way as will best guard applicants against arbitrary deprivations of liberty. From that perspective, I believe it is important that the content of the criteria in the abstract and their actual application in a specific case be determined by institutionally separate authorities."
"Following Al Chodor the requirement is for objective criteria which form the basis of a decision concerning the absconding risk to be implemented in domestic legislation".
Damages for unlawful detention
"All that a claimant has to prove in order to establish false imprisonment is that he was directly and intentionally imprisoned by the defendant, whereupon the burden shifts to the defendant to show that there was lawful justification for doing so. As Lord Bridge of Harwich said in R v Deputy Governor of Parkhurst Prison, ex p. Hague  1 AC 58, 162C-D: "The tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it.""