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 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 claimed damages for false imprisonment or under EU law in respect of his detention.
Held: (Sales LJ dissenting) The appeals by claimants succeeded, and that of the HS was rejected. The touchstone applied by the CJEU in Al Chodor for assessing compliance with articles 28(2) and 2(n) of the Dublin III Regulation was whether the provisions relied upon for detention had the requisite legal basis and the safeguards of clarity, predictability, accessibility and protection against arbitrariness within a framework of certain predetermined limits. The majority also held that it was clear that neither the Hardial Singh principles nor the Secretary of State’s published policy in Chapter 55 of the EIG satisfied these requirements. It followed that the detention of all of the respondents was in breach of article 28(2).
Each of the respondents had established all of the necessary ingredients of the common law cause of action for wrongful imprisonment. They had all been detained and that detention was unlawful because it was effected pursuant to the policy in Chapter 55 of the EIG, and that was itself unlawful in so far as it failed to give effect to articles 28(2) and 2(n) of the Regulation. The respondents were therefore entitled to damages for false imprisonment.
Dissenting, Sales LJ held that a policy statement such as that contained in Chapter 55 of the EIG was in principle capable of satisfying the requirements of articles 28(2) and 2(n) of the Dublin III Regulation, and that here it did satisfy those requirements. However, conscious that he was in the minority on this issue, he went on to consider whether, on the footing that he was wrong, the respondents were entitled to damages. He concluded that they were not. In his view, the claim turned on the alleged failure by the United Kingdom to adopt a particular form of law when implementing articles 28(2) and 2(n). In these circumstances the proper approach in considering whether the Secretary of State was liable for damages was to ask whether the relevant criteria for an award of damages in respect of a breach of European law had been satisfied and, in particular, whether the breach was sufficiently serious within the meaning of the decision of the CJEU in Factortame, that is to say whether the member state had manifestly and gravely disregarded the limits of its discretion. Here, any breach of articles 28(2) and 2(n) did not satisfy that ‘sufficiently serious’ test.
He also addressed the separate claims by the first and second respondents for false imprisonment based upon a breach of the Hardial Singh principles. In his view there was nothing in them, and in this regard he agreed with the decision of Garnham J: the first and second respondents were detained for proper reasons; they were assessed as posing a risk of absconding and that assessment was rational and justified; and throughout the period of their detention, there remained a real prospect that they would be removed eventually.
Sir Terence Etherton MR and Sales, Peter Jackson LJJ
[2018] EWCA Civ 2122, [2018] WLR(D) 632, [2019] INLR 179, [2019] 2 WLR 814, [2019] QB 708, [2019] 1 CMLR 21
Bailii, WLRD
England and Wales
Citing:
At AdmnSS, 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 . .
AppliedPolicie 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 by:
At CA (Appeal from)Hemmati and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 27-Nov-2019
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 . .

These lists may be incomplete.
Updated: 12 March 2021; Ref: scu.625415