The King on the application of MH (Eritrea) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Elisabeth Laing,Lady Justice Whipple,Lord Justice Baker |
| Judgment Date | 10 October 2022 |
| Neutral Citation | [2022] EWCA Civ 1296 |
| Docket Number | Case Nos: CA-2020-000294 and CA-2021-000082 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 1296
Lord Justice Baker
Lady Justice Elisabeth Laing
and
Lady Justice Whipple
Case Nos: CA-2020-000294 and CA-2021-000082
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE AND PLANNING COURT
Mr Justice Murray
CO/5712/2016
Royal Courts of Justice
Strand, London, WC2A 2LL
Louise Hooper (instructed by Duncan Lewis Solicitors) for the Appellant
Alan Payne KC (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 20 July 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and released to The National Archives. The date and time for hand-down is deemed to be 10.30am on 10 October 2022.
Introduction
This is an appeal from a decision of Murray J (‘the Judge’), with the leave of Popplewell LJ. The Respondent (‘the Secretary of State’) contended, for reasons which I describe below, that the appeal is now academic, and this Court should therefore decline to decide it. The Appellant (‘A’), who is legally aided, contended that the appeal is not academic, or that if it is, we should nevertheless hear it on the ground that our decision on the appeal will make a difference to him as it will affect his position in relation to the legal aid charge and to costs (Murray J made no order as to costs). The Secretary of State has conceded that A was unlawfully detained in 2016. If the costs order below stands, any damages A receives in his unlawful detention claim will be subject to a charge in favour of the Legal Aid Agency (‘the LAA’).
A was represented by Ms Hooper and the Secretary of State by Mr Payne KC. I thank both counsel for their written and oral submissions. At the end of this judgment, however, I will say something about an unsolicited note which Mr Payne sent to the Court after the hearing, to which Ms Hooper felt obliged to reply.
Paragraph references are to the Judge's judgment, or, if I am referring to an authority, to the relevant paragraph of that authority, unless I say otherwise.
The central issue on this appeal is whether, as the Secretary of State now contends, it is academic, or whether, as A contends, its resolution can make a difference to his position, and, in particular, to his entitlement to damages for false imprisonment. If the appeal is academic, there is a further question about the extent to which, and the purposes for which, this Court can nevertheless consider its merits.
For the reasons I give below, I consider that the appeal is academic. I will consider, nevertheless (on the basis of analogous authorities on costs disputes), first, whether it can be said that A has been successful in the litigation so far and, second, whether it is tolerably clear whether or not he would have won the appeal. This is a very unusual appeal in that the Court has heard full argument which occupied nearly a day. It is only in those circumstances that, in my judgment, it was appropriate for this Court to ask the second, necessarily limited, question.
The facts
This summary of the facts is based on the Judge's judgment and on the Secretary of State's digital records. A is a national of Eritrea. He was born on 6 September 1997. His account was that he had travelled from Eritrea to Sudan, and then to Libya. He then moved on to Italy, spending a night there. His fingerprints were taken by the Italian authorities in Cremona on 7 October 2015. He then went to Calais, and spent about four months there. He arrived in the United Kingdom on 3 February 2016, hidden in a lorry.
The Judge recorded that there was a dispute between A and the Secretary of State about the date when A claimed asylum. The exact date did not matter, the Judge said. It was either 3 February 2016, or 11 February 2016. In fact, the Secretary of State's detention reviews are clear that A claimed asylum on 3 February 2016. The immigration history summarised in all the detention reviews say that A was ‘encountered’ on 3 February 2016 when he ‘walked into the AIU and stated that he wished to claim asylum’. The ‘AIU’ is the Secretary of State's Asylum Intake Unit.
On 11 February 2016, A had what is called a ‘screening interview’ at the AIU in Croydon. A told the Secretary of State in that interview that his fingerprints had been taken on his journey. He did not know in which country. The Judge recorded that a Eurodac fingerprint match showed where and when he had been fingerprinted. The match was dated 3 February 2016, which might also tend to confirm A's account of the date when he claimed asylum.
On 20 March 2016, the United Kingdom made a request to Italy, pursuant to article 13.1 of the Dublin III Regulation, that Italy ‘take charge’ of A in order to examine his application for asylum. That request came from the Secretary of State's Third Country Unit (‘the TCU’), on the 6 th floor of Lunar House, in Croydon. Article 22.1 required Italy to reply to the take-charge request within two months, that is, by 20 May 2016. Italy did not do so. The effect of article 22.7 was that Italy was immediately deemed to have accepted the United Kingdom's take-charge request.
On 16 June 2016, the Secretary of State sent a letter to A, on Home Office notepaper. Only the first page of that letter was in bundle of documents for this appeal. The Judge recorded (paragraph 9) the Secretary of State's case that this letter was ‘issued in error’.
The first sentence said, ‘We have arranged an interview for you to discuss your claim for asylum, eligibility for Humanitarian Protection and human rights claim in the United Kingdom’. Close inspection shows that the letter was sent from the 4 th Floor, Lunar House. The letter told A that the interview was to be on 17 June on the 4 th Floor of Lunar House. A paragraph in bold capitals then asked him to ring a particular number, not more than five days before that date to confirm that he would be going to the interview. It continued that if he did not contact the relevant office, ‘your asylum claim may be treated as withdrawn’. The letter told A that a Tigrinian interpreter would be provided, ‘as requested’, which suggests that there had been earlier contact between A and the Secretary of State about the interview. A was asked to bring with him any documents which he wanted to rely on in support of his claim, and that any such documents must be translated into English, and certified to be authentic translations. His legal representative, if he had one, should be able to help him. If he arrived late, he might lose his opportunity to be interviewed. The interview would only be re-arranged if A had a good excuse for not going to it. If he was too ill, he would have to provide a doctor's certificate.
A was duly interviewed about the substance of his claim on 17 June 2016. Part of the record of that interview is in the bundle, although the first four pages seem to be missing. It is not therefore clear when the interview began, or what A was told about the purpose of the interview. A was asked 126 questions. The interview is recorded as having ended at 12.55 pm. The standard signature page is missing.
It is convenient to record here what the Secretary of State's digital records show. A did not register any objection to their use on this appeal. These records were referred to in argument as ‘the GCID notes’. There are several cover sheets, and several strands of notes. The first two are the most significant and they run from bundle page 416 to page 426, covering 3 February 2016 to 21 December 2016, and from page 427 to page 441, covering 9 February 2016 to 8 March 2017. A document on page 470 shows that A was ‘a person on 4 cases’. They are listed as ‘Asylum Claim – AIU’, ‘Third Country Case’, ‘Illegal Entry Clandestine’ and ‘Rule 35(3) – Torture’. Entries by the ASU Croydon Team created on 3 and 11 February 2016 relate to A's ‘walk in’ on the former date and to his screening interview on 11 February. The note records that A was referred to the TCU because of the Eurodac trace. ‘ASU’ is the Asylum Screening Unit.
The notes in the first strand record that A was assessed to be ‘a definite TCU case under Article 13.1 of the Dublin Regulation’. A flag was applied to A's case because it was a TCU case, and ‘until such time as it were to drop out of the TCU process it is not subject to the usual timeframes’. A note dated 31 May 2016 records that an interview had been booked for 17 June, that a Tigrinian interpreter had been requested, and that ‘The interview invite letters are sent to sub’ by recorded delivery and normal post. I think that ‘sub’ means ‘subject’, that is, A. Various questions and answers are recorded from which it seems that A's representatives were expected at the interview. A's file appears to have been in transit at that point. An entry for 28 June records the involvement of A's representatives: ‘Fax from Representatives, enclosed clarifications of interview notes’. This suggests that the notes of the interview were sent to A's solicitors, and that they commented on the notes.
There are mysterious entries about a ‘dummy file’ in July and August. On 30 August, an entry says ‘error’.
The second strand refers to the Eurodac match. A's case is described as an ‘ASU’ case. The note then says ‘PW is in TCU hold’ (9 February 2016). Two days later, A's case is described as a TCU non-detained case. An entry for 2 March 2016 says that A's is a ‘definite TCU case under article 13.1 of the Dublin Regulation’. A ‘non-straightforward case flag had been raised’. An entry for 20 March records that a formal request had been made to Italy under article 13. The response date was 20 May 2016, and the ‘Diary Action...
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