Thousands of people may have been unlawfully held in immigration removal centres in recent years, the court of appeal has ruled.

This opening sentence from a Guardian article the other day refers to the case of R (Hemmati & Ors) v Secretary of State for the Home Department [2018] EWCA Civ 2122. It is a pretty good summary of what the court decided, in a case with major implications for asylum seekers who were detained pending removal from the UK under the Dublin III Regulation.

Background: the case of Al Chodor

Under Dublin III, which determines the EU member state responsible for processing an asylum seeker’s application, the authorities of one EU country may detain an asylum seeker pending possible removal to the country responsible for the case when “there is a significant risk of absconding” (article 28).

In the 2017 case of C-528/15 Al Chodor and Others, the Court of Justice of the European Union held that, for detention pending a Dublin III transfer to be lawful, and pursuant to Articles 28 and 2(n) of the regulation, member states must establish objective criteria underlying the reasons for believing that the person subject to a transfer procedure may abscond. These criteria must be defined clearly by an act which is binding and foreseeable in its application, and the authorities’ discretion to detain should be exercised within a framework of “certain predetermined limits”. For more on Al Chodor, see this earlier post by Thomas Beamont.

Immediately following this judgment the Secretary of State published regulations, effective from 15 March 2017, which laid down the criteria to be considered when determining the risk of absconding.

The timing of the regulations, published immediately after the case of Al Chodor, raised the question as to whether the government was, implicitly, admitting that it had until then been unlawfully detaining asylum seekers pending their potential transfers under Dublin.

The issues in Hemmati: unlawful detention and damages

The present case put that question to rest. The first issue was whether the test and guidance relied on by the Secretary of State before March 2017 to detain asylum seekers pending a Dublin III transfer satisfied the requirements of Article 28. Before the March 2017 regulations were introduced, officials relied on the Hardial Singh principles and the policy in Chapter 55 of the Enforcement Instructions and Guidance (“EIG”).

The second issue was whether, if the Home Office approach did not satisfy the requirements of Dublin III, damages were to be paid to the appellants.

Majority judgment

Rather unusually, not all three judges of the Court of Appeal came to the same conclusion. Sir Terence Etherton and Lord Justice Peter Jackson, who gave the majority judgment, found that

The Hardial Singh principles and the criteria listed in Chapter 55 of the EIG did not satisfy the requirements set down in Al Chodor

A list of criteria, some of which are relevant to absconding and others of which are not or may not be relevant, do not satisfy the Al Chodor requirements for the criteria for assessment of the risk of absconding to be set out in a legally binding instrument and to be clear, predictable and accessible. They do not enable the applicant to know which criteria will be applied specifically to meet the requirements of Article 28 and 2(n). Critically, they are not a “framework of certain predetermined limits” as required by Al Chodor for deprivation of the fundamental right to liberty under Article 6 of the Charter. [paragraph 174]

The appellants were entitled to damages under domestic law for false imprisonment

Quoting R v Deputy Governor of Parkhurst Prison, ex p. Hague [1992] 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.

In this case:

The detention of the appellants was unlawful because it was purportedly pursuant to the policy in the EIG which was itself unlawful insofar as it failed to give effect to Article 28(2) and Article 2(n). [191]

It followed that

all the necessary ingredients for the common law cause of action for false imprisonment are satisfied in the case of each of the appellants [190]

The appellants were, therefore, entitled to damages, the amount of which will be determined by a separate court.

The dissenting opinion of Lord Justice Sales

The judgment runs over 50 pages because Lord Justice Sales dissented on both issues. He argued that:

The list of factors in para. 55.3.1 of the EIG is clearly not focused exclusively on criteria relevant to risk of absconding for cases covered by Article 28, but functions as a more compendious list relevant both to Article 28 cases and to other cases in which it may be appropriate to consider detention for immigration purposes. In my view, this is not incompatible with Article 2(n). Article 2(n) does not say that the objective criteria have to be set out in a stand-alone document or format, focused exclusively on Article 28, nor that there has to be express reference to that provision.

Moreover, neither the Advocate General nor the CJEU in Al Chodor suggested that this was the case, even though, if correct, that would have provided a simple and straightforward answer to the question referred to them. An individual who falls within the scope of Article 28 and Article 2(n) can readily identify which objective criteria in the list in para. 55.3.1 are relevant to the question which arises where Article 28(2) applies, namely whether he will be assessed to pose a risk of absconding. The objectives of legal certainty and predictability are met. Similarly, the discretion regarding detention exercised by an official addressing a case which falls within Article 28(2) will be constrained by the factors in the list which are relevant to the assessment of a risk of absconding. Accordingly, the objective of constraint of discretion is met. [128]

With regards to damages, Sales LJ found that, because this case related to EU law, the test to be applied when deciding whether the appellants were entitled to damages was the “sufficient serious” test established in the case of Factortame:

the decisive test for finding that a breach of Community law is sufficiently serious is whether the member state … concerned manifestly and gravely disregarded the limits on its discretion

The test of Factortame was to be applied because it recognised that

in many cases the precise effect of EU law may be unclear until that effect is authoritatively established by a judgment of the ECJ (now CJEU) [136]

and, in Sales LJ’s view,

any breach of Article 2(n) by the UK in this case does not satisfy the “sufficiently serious breach” test. In advance of the clarification provided by the judgment in Al Chodor, it was not unreasonable for the Secretary of State to take the view that the EIG sufficiently complied with the requirements of Article 2(n). In Al Chodor, the CJEU itself found it difficult to spell out precisely what the requirements of Article 2(n) were. Even after that judgment, the position in relation to a list of objective criteria in a statement of policy such as the EIG remained uncertain.

Of course, as Sales LJ was in the minority, the appellants still won the case. In response, a spokesperson for the Home Office said that “we are disappointed with the court’s ruling and are carefully considering the next steps.” If the Home Office decides to appeal, it may very well rely on Lord Justice Sales’ opinion to argue that there is a case to be made that the Court of Appeal reached the wrong conclusion.

What are the practical implications of the case?

Krisha Prathepan of Duncan Lewis Solicitors, who represented two of the appellants, points out the importance of the decision:

This historic judgment has vast implications for those who were detained under the provision in the Dublin Regulation. The Court of Appeal has ruled that the Home Office cannot detain people indefinitely for the purposes of transfer to another member state at a time when “significant risk of absconding” had not been defined in the UK law. It is deeply concerning that the Home Office’s unlawful conduct may have led to the detention of so many people without any lawful basis.

That is echoed by Greg Ó Ceallaigh of Garden Court Chambers, one of the barristers involved:

This is a case of massive significance to anyone who was detained for the purposes of removal under the Dublin III Regulation between 1 January 2014 and 15 March 2017. Throughout that period, when the Secretary of State failed to define in law the criteria for a risk of absconding – the only way detention can be justified under the Regulation – there was a public law error bearing on the decision to detain. Those people were falsely imprisoned. This is another case of the Home Office’s reflexive and unnecessary use of detention causing more problems than it solves.

A large number of people who were detained pending a Dublin transfer between 1 January 2014 and 15 March 2017 could be claiming damages. It would be advisable, of course, for them to wait to see the amount of damages awarded to the appellants in this case, before deciding whether it is worth bringing those claims to court.

The Secretary of State might also seek to appeal the decision to the Supreme Court in an effort to limit the potentially huge amount of damages. Watch this space.