Hemmati v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Reed,Lady Hale,Lord Kitchin,Lord Wilson,Lady Arden |
| Judgment Date | 27 November 2019 |
| Neutral Citation | [2019] UKSC 56 |
| Court | Supreme Court |
[2019] UKSC 56
Lady Hale, President
Lord Reed, Deputy President
Lord Wilson
Lady Arden
Lord Kitchin
Appellant
Sir James Eadie QC
Robin Tam QC
Alan Payne QC
Julie Anderson
(Instructed by The Government Legal Department)
Respondent (1)
Michael Fordham QC
Raza Halim
(Instructed by Fadiga & Co)
Respondent (2)
Michael Fordham QC
David Chirico
(Instructed by Duncan Lewis Solicitors (Luton))
Respondents (3 & 4)
Hugh Southey QC
Greg Ó Ceallaigh
(Instructed by Duncan Lewis Solicitors (Harrow))
Respondent (5)
Michael Fordham QC
Irena Sabic
(Instructed by Duncan Lewis Solicitors (Luton))
Respondents:-
(1) Hoda Hemmati
(2) Fawad Khalili
(3) Jamal Abdulkhadir
(4) Jwytar Anwar Mohammed
(5) SS
Heard on 29 and 30 July 2019
( with whom Lady Hale, Lord Reed, Lord Wilson and Lady Arden agree)
This appeal by the Secretary of State for the Home Department concerns five individuals, the respondents, who arrived in the United Kingdom illegally and claimed asylum. Inquiries revealed that they had travelled to the United Kingdom via at least one other member state of the European Union in which they had already claimed asylum and so the Secretary of State requested those states to take responsibility for examining the asylum claims pursuant to Parliament and Council Regulation (EU) No 604/2013 of 26 June 2013 (“the Dublin III Regulation”, “Dublin III” or “the Regulation”). Ultimately each such state agreed to take the relevant respondent back for that purpose.
The respondents were all detained for a period of time pending their removal pursuant to paragraph 16(2) of Schedule 2 to the Immigration Act 1971. The Secretary of State had published her policy in relation to detention pending removal in Chapter 55 of her Enforcement Instructions and Guidance (23 October 2015) (“the EIG”). This appeal now gives rise to important questions concerning the requirements imposed on member states by the Dublin III Regulation, whether the policy in Chapter 55 of the EIG meets those requirements and, so far as it fails to do so, the consequences of that failure. The particular questions which must be decided are:
i) whether the detention of each respondent was lawful given that article 28 of the Dublin III Regulation permits detention where there is a “significant risk of absconding”, “risk of absconding” being defined in article 2(n) as the existence of reasons in an individual case, based on objective criteria defined by law, to believe that the person might abscond; and, if the detention was not lawful,
ii) whether damages are payable either under domestic law for false imprisonment or pursuant to what is known as the Factortame principle established in Brasserie du Pecheur SA v Federal Republic of Germany; R v Secretary of State for Transport; Ex p Factortame Ltd No 4 (Joined Cases C-46/93 and C-48/93) [1996] QB 404.
Ms Hoda Hemmati, the first respondent, is a national of Iran and arrived in the United Kingdom illegally by lorry. On 11 February 2015 she presented herself to the authorities and claimed asylum. A check revealed that she had already claimed asylum in Bulgaria. The United Kingdom proceeded formally to request Bulgaria under the Dublin III procedure to take responsibility for the asylum claim and on 17 April 2015 Bulgaria agreed to do so. On 8 June 2015 she was detained in order to effect her removal to Bulgaria and, according to the evidence of the Secretary of State, on the basis she posed a risk of absconding. Removal directions were set for 7 July 2015. These were cancelled when she gave notice that she had issued judicial review proceedings to challenge the decision to remove her. She contended that removal would give rise to a real risk of a violation of her rights under article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the ECHR”). She was released on 17 July 2015. She was therefore detained from 8 June 2015 to 17 July 2015.
Mr Fawad Khalili, the second respondent, is a national of Afghanistan. He arrived in the United Kingdom illegally by lorry. On 20 November 2014 he presented himself to the authorities and claimed asylum. He was initially released on temporary admission. On 6 January 2015 he attended a screening interview and made a formal in-country claim for asylum. He was detained on the basis that his removal was imminent, that he had behaved deceptively and, according to the evidence of the Secretary of State, that he posed a risk of absconding. A check revealed that he too had already made an asylum claim in Bulgaria. The United Kingdom proceeded formally to request Bulgaria under the Dublin III procedure to take responsibility for the asylum claim and on 12 February 2015 Bulgaria agreed to do so. Removal directions were set for 23 February 2015.
In the meantime, on 5 February 2015, the second respondent made submissions to the Secretary of State that his removal would breach his rights under article 3 of the ECHR and on 20 February 2015 he issued a claim for judicial review to prevent his scheduled removal. The removal directions were cancelled and on 9 March 2015 he was granted bail by the First-tier Tribunal (“the FTT”). He claims that his detention became unlawful on 5 February 2015, the date he complained that his removal to Bulgaria would be incompatible with article 3 of the ECHR. The relevant period of his detention was therefore 5 February 2015 to 9 March 2015.
Mr Jamal Abdulkadir, the third respondent, is a national of Iraq. On 18 August 2015 he arrived in the United Kingdom illegally by lorry. Upon arrival in Kent, he ran from the lorry but was apprehended and detained. The Secretary of State maintains that the evidence he produced of his identity was inadequate and that there was a risk he would abscond. A check revealed that he had made an asylum claim in Austria in July 2015. At this point he claimed asylum in the United Kingdom. The United Kingdom proceeded formally to request Austria under the Dublin III procedure to take responsibility for the asylum claim and on 15 September 2015 Austria agreed to do so. On 28 September 2015 removal directions were set but later cancelled at Austria's request. Further removal directions were set for 23 October 2015. On 22 October 2015 the third respondent issued judicial review proceedings challenging the decision to remove him on the basis that in Austria he would be exposed to a real risk of violation of his rights under article 3 of the ECHR. He made an application for bail which the FTT refused on 13 November on the basis that there was a risk he would abscond and that it was likely he would be removed in a short time. On 27 November 2015 he was given permission to apply for judicial review and on 8 December 2015, upon review of his detention, he was released. He was therefore detained from 18 August 2015 to 8 December 2015.
Mr Jwytar Mohammed, the fourth respondent, is also a national of Iraq. On 8 September 2015 he arrived in the United Kingdom illegally by lorry. He ran off when the lorry doors were opened but was apprehended later that day. He claimed asylum and, according to the evidence of the Secretary of State, was detained on the basis he posed a risk of absconding. A check revealed that he had previously claimed asylum in Austria. The United Kingdom proceeded formally to request Austria under the Dublin III procedure to take responsibility for the asylum claim and on 15 September 2015 Austria agreed to do so. Removal directions were set for 12 October 2015 but on 2 October 2015 he began proceedings for judicial review claiming, among other things, that in Austria he would be exposed to a real risk of violation of his rights under article 3 of the ECHR. He was released from detention on 4 November 2015. He was therefore detained from 8 September 2015 to 4 November 2015.
SS, the fifth respondent, is a national of Afghanistan. On 15 September 2015 he arrived in the United Kingdom illegally and by hiding in the back of a train. Upon arrival he claimed asylum and pretended to be a child. A check revealed he had already claimed asylum in Bulgaria, Hungary and Germany. He was detained on that same day on the basis that it was reasonably likely that he would be accepted by another member state under the Dublin III procedure. A month later a notice of detention review stated that it had been decided he should remain in detention because there was reason to believe he would not comply with any conditions of release. The United Kingdom proceeded formally to request Bulgaria, Hungary and Germany under the Dublin III procedure to take responsibility for the asylum claim and on 27 October 2015 Germany agreed to do so. Removal directions were set for 30 November 2015 but were cancelled when he began proceedings for judicial review. He was released from detention on 10 December 2015. He was therefore detained from 15 September 2015 to 10 December 2015.
The judicial review claims brought by the first and second respondents were listed for hearing together with claims brought by three other individuals. The first and second respondents challenged both the lawfulness of their removal and the lawfulness of their detention. The claims were heard by Garnham J who dealt first with their challenges to removal. He gave judgment on 18 April 2016 dismissing all of the claims ( [2016] EWHC 857 (Admin)) and an appeal to the Court of Appeal was subsequently dismissed ( [2017] EWCA Civ 1871). There has been no further appeal against that decision. Garnham J gave a further judgment on 15 June 2016 dealing with the claims for unlawful detention ( [2016] EWHC 1394...
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