Hemmati v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales |
| Judgment Date | 04 October 2018 |
| Neutral Citation | [2018] EWCA Civ 2122 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2016/3496, C4/2016/4307, C4/2016/3153, C4/2016/3325 & C4/2017/1759 |
| Date | 04 October 2018 |
The Queen on the application of:
[2018] EWCA Civ 2122
THE MASTER OF THE ROLLS
Lord Justice Sales
and
Lord Justice Peter Jackson
Case No: C4/2016/3496, C4/2016/4307, C4/2016/3153, C4/2016/3325 & C4/2017/1759
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT (ADMINISTRATIVE COURT)
The Hon. Mr Justice Garnham: [2016] EWHC 1394 (Admin)
The Hon. Mr Justice Irwin: [2016] EWHC 1504 (Admin)
Mr John Howell QC (sitting as a Deputy Judge of the High Court): [2017] EWHC 1295 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
David Chirico, Mark Symes and Raza Halim (instructed by BHD Solicitors and Fadiga and Co Solicitors) for Mr Hemmati and (instructed by Duncan Lewis Solicitors) for Mr Khalili
Hugh Southey QC and Greg Ó 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
This is the conjoined hearing of appeals in respect of three judgments covering the cases of five individual immigrants who were placed in detention for periods pending possible removal to other EU Member States pursuant to the asylum claim arrangements under the so-called Dublin III Regulation (Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 — “Dublin III” or “the Regulation”). In each case, the individual claims damages for false imprisonment or under EU law in respect of his detention.
There are appeals by Mr Hemmati and Mr Fawad Khalili from the judgment of Garnham J at [2016] EWHC 1394 (Admin)) and appeals by Mr Abdulkadir and Mr Mohammed from the judgment of Irwin J (as he then was) at [2016] EWHC 1504 (Admin). In those cases, the individuals' claims for damages failed. There is also an appeal by the Secretary of State from the judgment of Mr John Howell QC (sitting as a Deputy High Court Judge) at [2017] EWHC 1295 (Admin) in relation to the detention of the fifth individual, SS. In that case, SS's claim for damages was successful at the liability stage, and a hearing is to follow to assess their quantum. Although the Secretary of State is appellant in the case of SS, it is convenient to refer to all the individuals together as “the appellants”, as the parties have done.
On the appeals, Mr Hemmati and Mr Khalili are represented by David Chirico, Mark Symes and Raza Halim, as they were before Garnham J; Mr Abdulkadir and Mr Mohammed are represented by Hugh Southey QC and Greg Ó Ceallaigh, as they were before Irwin J; and SS is represented by Nathalie Lieven QC (who did not appear below) and Irena Sabic (who did). The Secretary of State is represented by Jonathan Swift QC (who did not appear below), Alan Payne (who represented the Secretary of State before Irwin J) and Julie Anderson (who represented the Secretary of State before Garnham J).
The principal issues in the appeals concern the meaning and effect of Article 2(n) and Article 28 of Dublin III (“Article 2(n)” and “Article 28”, respectively), which relate to the detention of an individual for the purpose of transfer to another Member State under that Regulation. Mr Hemmati and Mr Khalili also raise a distinct issue regarding whether Garnham J was right to hold that their detention was lawful by application of the usual principles of domestic law first adumbrated in Re Hardial Singh [1984] 1 WLR 704 and rehearsed in later authorities such as R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888 and Lumba v Secretary of State for the Home Department [2012] 1 AC 245 (“the Hardial Singh principles”).
The issues which arise for determination on the appeals in all five cases, as eventually explained and agreed at the hearing, are as follows:
(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 Pêcheur S.A. v Federal Republic of Germany and R v Secretary of State for Transport, ex p. Factortame Ltd (No. 4) [1996] QB 404), whereby damages are recoverable for a “sufficiently serious” breach of EU law?
Issue (1) requires consideration of the effect of the judgment of the CJEU in Case C-528/15 Al Chodor EU:C:2017:213; [2017] 4 WLR 125. That judgment was delivered after the decisions of Garnham J and Irwin J under appeal before us, but before the judgment of Mr Howell QC. The issues for the appeals have been recast in light of Al Chodor, in order to allow this court to consider the meaning and effect of that judgment. The arguments now raised by the appellants in the first two cases in respect of Issue (1) for the appeal were not raised before Garnham J and Irwin J. However, it is common ground that this court should review their decisions in the light of Al Chodor and the new submissions made on the basis of Al Chodor.
This has been helpful, as allowing a focus on what are now perceived to be the issues common to all the cases, namely Issue (1) and Issue (2). However, less helpfully, the parties have not attempted to define the issues for the appeal in a formal manner by way of grounds of appeal set out in their notices of appeal or any respondent's notice. At certain points in the hearing, this made for a lack of clarity regarding what was and was not in issue on the appeals, and what was and was not under challenge in relation to the reasoning of the judges below. Some points were clarified by agreement in the course of the hearing; other points sought to be raised were not agreed. Given the way in which the parties have approached the appeals, the fair course is to determine them on the basis of the issues as defined in the relevant skeleton arguments produced for the hearing, as explained and agreed at the hearing itself. Where new issues were sought to be raised which had not been identified in advance nor agreed at the hearing, no permission was given for them to be introduced on the appeal and it would not be fair nor in accordance with the overriding objective to determine the appeals on the basis of them.
Ms Lieven presented the submissions for the appellants on Issue (1). Mr Southey presented the submissions for the appellants on Issue (2). Mr Chirico presented the submissions for Mr Hemmati and Mr Khalili on the distinct Hardial Singh issue in their cases.
The legislative framework
Section 3 of the Immigration Act 1971 sets out the requirement for a person who is not a UK citizen (or person with a right of abode in the UK) to be granted leave to enter, or leave to remain, in the UK. A person without a current valid leave to remain is subject to administrative removal or deportation. The 1971 Act provides broad powers of detention pending deportation or removal in Schedules 2 and 3.
Paragraph 16(2) of Part 1 of Schedule 2 to the 1971 Act (“paragraph 16(2)”) provides the power to detain pending removal:
“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.”
The Dublin III Regulation replaced the previous Regulation, No. 343/2003, known as Dublin II, which had only contained provisions regulating the conduct of Member States between themselves and had not included provisions intended to create rights enforceable by individuals. However, part of the object of Dublin III was to introduce protections for asylum seekers subject to its procedures.
Recitals (9) and (20) of Dublin III state:
“(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...
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