The Home Secretary appealed from a finding that illegally entered asylum seekers had been unlawfully detained pending removal. The five claimants had travelled through other EU member states before entering the UK. The court considered inter alia whether damages for false imprisonment were allowable under Factortame.
Held: The appeals failed. Chapter 55 of the EIG does not establish objective criteria for the assessment of whether an applicant for international protection who is subject to a Dublin III transfer procedure may abscond; its contents do not constitute a framework with certain predetermined limits; and it does not set out the limits of the flexibility of the relevant authorities in assessing the circumstances of each case in a manner which is binding and known in advance. It follows that Chapter 55 of the EIG cannot satisfy the requirements of articles 28(2) and 2(n) of the Dublin III Regulation and the majority of the Court of Appeal were right so to hold.
They were all detained unlawfully and are entitled to damages under domestic law for false imprisonment. I would transfer these proceedings to the County Court for the assessment of the quantum of those damages, if that quantum cannot be agreed.
Judges:
Lady Hale, President, Lord Reed, Deputy President, Lord Wilson, Lady Arden, Lord Kitchin
Citations:
[2019] UKSC 56, [2019] 3 WLR 1156, [2021] AC 143, [2020] HRLR 4, 47 BHRC 600, [2020] INLR 260, [2020] 1 All ER 669, [2020] WLR(D) 12, UKSC 2018/0197
Links:
Bailii Summary, Bailii, WLRD, SC, SC Summary, SC Summary Video, SC 29 Jul 2019 am Video, SC 29 Jul 2019 pm Video, SC 30 Jul 2019 am Video
Statutes:
Parliament and Council Regulation (EU) No 604/2013, Immigration Act 1971
Jurisdiction:
England and Wales
Citing:
At Admn – SS, Regina (on The Application of) v Secretary of State for The Home Department and Another Admn 26-May-2017
The claimant sought asylum, claiming to be a child.
Held: He was not a child when detained. However, he had been detained to secure his transfer to the responsible member state under the Dublin III scheme; that it had to be established that he . .
At CA (Appeal from) – Hemmati and Others, Regina (on The Application of) v The Secretary of State for The Home Department CA 4-Oct-2018
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 . .
Cited – Regina v Governor of Durham Prison, ex parte Hardial Singh QBD 13-Dec-1983
Unlawful Detention pending Deportation
An offender had been recommended for deportation following conviction. He had served his sentence and would otherwise have been released on parole. He had no passport and no valid travel documents. He complained that the length of time for which he . .
Cited – Brasserie du Pecheur v Bundesrepublik Deutschland; Regina v Secretary of State for Transport, ex parte Factortame and others (4) ECJ 5-Mar-1996
Member states may be liable to individuals for their failure to implement EU laws. The right of individuals to rely on directly applicable provisions of the EC Treaty before national courts is not sufficient in itself to ensure full and complete . .
Cited – HK (Iraq) and Others, Regina (on The Application of) v The Secretary of State for The Home Department CA 23-Nov-2017
The claimants had applied for asylum, but had arrived from other EU countries. Their claims being dismissed, they were detained pending removal. They said that on return to Bulgaria, they would face harsh treatment. . .
At Admin (1) – Khaled v SS Home Department Admn 18-Apr-2016
The Court was asked as to the making of orders for the return of asylum seekers to Bulgaria, being their first country of arrival within the EU. The claimants challenged both the lawfulness of their removal and the lawfulness of their detention.
Cited – Abdulkadir and Another, Regina (on The Application of) v The Secretary of State for The Home Department Admn 28-Jun-2016
. .
Cited – Policie CR, Krajske reditelstvi policie Usteckeho kraje, odbor cizinecke policie v Al Chodor and Others ECJ 15-Mar-2017
Police detention of Immigrants to follow rules
ECJ (Judgment) Reference for a preliminary ruling – Criteria and mechanisms for determining the Member State responsible for examining an application for international protection – Regulation (EU) No 604/2013 . .
Cited – Nouazli, Regina (on The Application of) v Secretary of State for The Home Department SC 20-Apr-2016
The court considered the compatibility with EU law of regulations 21 and 24 of the 2006 Regulations, and the legality at common law of the appellant’s administrative detention from 3 April until 6 June 2012 and of bail restrictions thereafter until . .
Cited – Kambadzi (previously referred to as SK (Zimbabwe)) v Secretary of State for The Home Department SC 25-May-2011
False Imprisonment Damages / Immigration Detention
The respondent had held the claimant in custody, but had failed to follow its own procedures. The claimant appealed against the rejection of his claim of false imprisonment. He had overstayed his immigration leave, and after convictions had served a . .
Cited – Regina (Nadarajah) v Secretary of State for the Home Department; Abdi v Secretary of State for the Home Department CA 22-Nov-2005
The asylum applicant challenged a certificate given by the respondent that the claim for asylum was manifestly ill-founded. The respondent had made a mistake in applying the appropriate policy, but had sought to correct the error. The claimants . .
Cited – Mandalia v Secretary of State for The Home Department SC 14-Oct-2015
The Court considered the guidance given to UK Border Agency case workers when considering document submitted by persons applying for leave to enter or stay in the UK as foreign students. M had applied to study here, but had not accompanied his . .
Cited – Kruslin v France ECHR 24-Apr-1990
Hudoc The claimant complained of the interception of her telephone calls.
Held: The condition of legality relates to the characteristics of the legislation itself, and not just to its application in the . .
Cited – Regina v Deputy Governor of Parkhurst Prison, Ex parte Hague, Weldon v Home Office HL 24-Jul-1991
The prisoner challenged the decision to place him in segregation under Prison Rule 43. Under rule 43(1) the initial power to segregate was given to ‘the governor’. The case arose from the fact that the governor of one prison had purported to . .
Cited – Francovich, Bonifaci and others v Italy ECJ 19-Nov-1991
LMA The claimants, a group of ex-employees sought arrears of wages on their employers’ insolvency. The European Directive required Member States to provide a guarantee fund to ensure payment of employees’ arrears . .
Cited – Regina v Ashworth Hospital Authority (Now Mersey Care National Health Service Trust) ex parte Munjaz HL 13-Oct-2005
The claimant was detained in a secure Mental Hospital. He complained at the seclusions policy applied by the hospital, saying that it departed from the Guidance issued for such policies by the Secretary of State under the Act.
Held: The House . .
Cited – Dougoz v Greece ECHR 6-Mar-2001
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 3; Violation of Art. 5-1; Violation of Art. 5-4; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses . .
Cited – Greenfield, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
The appellant had been charged with and disciplined for a prison offence. He was refused legal assistance at his hearing, and it was accepted that the proceedings involved the determination of a criminal charge within the meaning of article 6 of the . .
Cited – Parker v The Chief Constable of Essex Police CA 11-Dec-2018
The claimant was arrested on suspicion of murder and rape. The investigating officer was delayed by traffic so the arrest was carried out by a surveillance officer who was present at the scene but did not personally have reasonable grounds for . .
Cited by:
Cited – DN (Rwanda), Regina (on The Application of) v Secretary of State for The Home Department SC 26-Feb-2020
Challenge to deportation of successful asylum applicant on release from prison after conviction of an offence specified under the 2004 Order as a particularly serious crime. . .
Lists of cited by and citing cases may be incomplete.
Immigration, European, Damages
Updated: 11 July 2022; Ref: scu.645432