Khaled, R (on the application of) v Secretary of State for the Home Department (No 2)

Article 28 of Dublin III does not displace the domestic power to detain a person who has no right to enter or remain in the United Kingdom where detention is authorised under an independent domestic power. Its restrictions apply where detention is solely based on the Dublin procedure. A published detention policy must be properly considered where independent evidence indicates that a detainee has been tortured. A failure bearing directly on the decision to detain may render detention unlawful and may give rise to more than nominal damages. Under the Hardial Singh principles, removal need not be imminent. Detention remains lawful while the Secretary of State intends to remove the person and there is a sufficient prospect of removal within a reasonable period, assessed with particular regard to the risk of absconding and the Secretary of State’s diligence.

Five asylum seekers challenged decisions concerning their removal to Bulgaria under Dublin III. Four also claimed damages for unlawful detention. The detention claims concerned HK, HH, SK and FK, who had been detained at different times while removal arrangements and related legal challenges were pursued.

The issues included whether Article 28 of Dublin III had direct effect and governed detention authorised under domestic law; whether the Secretary of State had failed to follow her published policy concerning persons for whom there was independent evidence of torture; whether detention breached the Hardial Singh principles; and whether there was a separate breach of article 5 ECHR.

1. Article 28 of Dublin III. Dublin III is capable in principle of having direct effect, but the effect of an individual provision depends on its terms. Article 28(1) prevents detention solely because a person is subject to the Dublin procedure. Article 28(2) applies in that situation and does not abolish the pre-existing power under paragraph 16(2) of Schedule 2 to the Immigration Act 1971 to detain a person without leave pending removal. Article 28 did not therefore provide these claimants with a basis for challenging detention authorised under domestic law. No reference to the CJEU was appropriate.
2. Published policy and torture evidence. The Secretary of State was required to follow her published policy unless there was good reason not to do so. The policy treated persons for whom there was independent evidence of torture as normally suitable for detention only in very exceptional circumstances. The relevant question was whether the clinician had gone beyond merely recording the detainee’s account and had expressed an opinion that the account was likely to be true or was consistent with clinical signs. HK’s report required further inquiry and the policy was not properly considered. His detention from 18 May to 30 June 2015 was unlawful. The same failure occurred in SK’s detention from 20 February to 25 March 2015 and from 21 July to 11 August 2015. More than nominal damages were available.
3. HH’s reports recorded his account and clinical findings but did not express an opinion supporting the conclusion that he had been tortured. His detention was therefore not unlawful on this ground.
4. Hardial Singh. Removal need not be imminent. The question is whether there is a sufficient prospect of removal to warrant continued detention, taking account of all relevant factors, including the risk of absconding and any risk to the public. The claimants’ periods of detention were modest and reasonable, and there was no want of diligence or expedition. The commencement of judicial review proceedings did not automatically require release.
5. There was no separate breach of article 5 ECHR. The claims succeeded for HK and SK on the policy ground and otherwise failed.