The Court of Appeal has held that the unlawful removal of a vulnerable Afghan child and the 18 months of disruption to his private life entitles him to damages under the Human Rights Act 1998 and under EU law. The case is QH (Afghanistan) v Secretary of State for the Home Department [2022] EWCA Civ 421

The case concerned an unaccompanied child, A, from Afghanistan who entered the UK in April 2016 saying he was 16 years old. Lincolnshire County Council social workers decided that he was 19. A went to live with his uncle, D, a British citizen. The Home Office made a “take back” request to Germany under the Dublin III Regulation on the basis that he was 19, which the German authorities accepted.

A was detained in early April 2017. On Sunday 9 April he was notified of a removal window beginning the next day. Under the department’s policy, he should have been given five working days’ notice. Instead he was removed at 10am on 11 April 2017.

Unlawful removal, but no damages

It was not in dispute that this breached Home Office policy. The department suggested, without producing evidence, that the removal had occurred due to “administrative clerical error”.

A’s solicitors immediately took steps to seek his return, first through pre-action correspondence and then judicial review proceedings lodged in January 2018. In December 2018 the Upper Tribunal declared that A had been unlawfully removed on the basis he had not been given adequate notice, in breach of policy and the right to an effective remedy under Article 27 of Dublin III. It ordered A’s return and he arrived back in the UK on 20 December 2018, one year and eight months after being removed.

In a further judgment promulgated in May 2020, the tribunal accepted that A was the age he had given on arrival (16). That left the issue of whether he was entitled to damages for the admitted breach of his private life under Article 8 of the European Convention on Human Rights and the breach of Article 27, Dublin III. The Upper Tribunal decided that he was not: declaratory relief was sufficient just satisfaction and the breach of EU law was not sufficiently serious so as to entitle him to Francovich damages.

Mental health, Francovich and the Court of Appeal

The Court of Appeal decided that A was in principle entitled to damages under both heads.

In relation to Human Rights Act damages, the tribunal’s approach had been informed by two significant errors. Firstly, the May 2020 decision about A’s age meant that his case should have been considered on the basis that, at the time of his unlawful removal, he was a child. The Upper Tribunal had mistakenly approached this on a conventional public law basis, asking itself whether the department had been entitled to proceed as it had. Secondly, it had been wrong to accept the department’s suggestion that A’s solicitors were partly responsible for the length of the disruption to his private life by not bringing proceedings earlier and the complexity of the inter-state procedures for sorting things out.

Lady Justice Elizabeth Laing said:

… the only conclusion which was open to the UT in this case was that an award of damages was necessary to afford just satisfaction to A… A had fled Afghanistan. He was a troubled and distressed child. He had tried to commit suicide. The gradual, and no doubt difficult, development of a relationship with D, and A’s relationships with his support network, could not have been more important to him, not least to his mental stability. As a consequence of A’s unlawful removal, they were disrupted for many months.

As for Francovich damages for the breach of EU law, he had been given one working day’s notice when he should have had five. Laing LJ was unimpressed by the Home Office assertion that A’s removal had been because of a clerical error:

A’s removal was not an accident. It was a deliberate act.

The judge was also scathing about the department’s suggestion that A could have applied for an injunction to stop his removal: “The suggestion that A, a vulnerable child, could have challenged his removal in the course of one working day is, I am sorry to say, ridiculous”. The breach of EU law was sufficiently serious and A was in principle entitled to damages under this head also.

The assessment of damages is being transferred to the County Court, alongside A’s claim for damages for unlawful detention.

Comment

The simplicity of the Court of Appeal’s approach in QH is in stark contrast to its complex and confusing decisions on Article 8 damages claims brought by unaccompanied children whose reunification with UK-based family members was delayed because of Home Office failures and errors.