Hemmati & Ors, R (on the application of) v The Secretary of State for the Home Department

Where detention is imposed solely to secure transfer under the Dublin III Regulation, Article 2(n) and Article 28 require objective criteria for risk of absconding to be established in a binding provision of general application, with clarity, predictability, accessibility and safeguards against arbitrariness. The domestic Hardial Singh principles and general Home Office detention guidance did not meet that standard because they lacked an exhaustive Dublin-specific framework. The detention was therefore unlawful. Article 28 directly constrained the statutory detention discretion, engaging the common-law tort of false imprisonment. Damages were not confined to the EU-law sufficiently serious breach test. Four detainees’ appeals were allowed and the Secretary of State’s appeal concerning SS was dismissed.

Five asylum seekers were detained pending possible transfer to other EU Member States under the Dublin III Regulation. Garnham J dismissed Hemmati and Khalili’s claims ([2016] EWHC 1394 (Admin)); Irwin J dismissed Abdulkadir and Mohammed’s claims ([2016] EWHC 1504 (Admin)); and Howell QC held SS’s detention unlawful at the liability stage ([2017] EWHC 1295 (Admin)). The appeals concerned whether the Hardial Singh principles and the Enforcement Instructions and Guidance satisfied Article 2(n) and Article 28 following Al Chodor, and whether any unlawful detention attracted damages in false imprisonment or only under EU law. The central issue was whether domestic law supplied the objective and legally certain criteria required to assess significant risk of absconding.

Majority

1. Disposition. The appeals of Hemmati, Khalili, Abdulkadir and Mohammed were allowed. The Secretary of State’s appeal in SS’s case was dismissed. The cases were remitted for assessment of damages.
2. Article 2(n) and Article 28. The court proceeded on the agreed footing that detention was solely to secure transfer under the Dublin III arrangements. Following the reasoning and decision in Al Chodor EU:C:2017:213, the criteria underlying significant risk of absconding had to be established in a binding provision of general application. The framework also had to provide clarity, predictability, accessibility, protection against arbitrariness and predetermined limits on official discretion.
3. Domestic principles and policy. The Hardial Singh principles imposed a general reasonableness test. They were not objective criteria defined by law for Article 2(n). Chapter 55 of the EIG contained no Dublin III-specific direction, did not identify significant risk of absconding as the sole ground, and gave no specific direction on proportionality or ineffective less coercive measures. Its mixed and non-exhaustive list of detention factors therefore failed to provide the required framework.
4. Remedy. Article 28, read with Article 2(n), directly constrained the discretion under paragraph 16(2) of Part 1 of Schedule 2 to the Immigration Act 1971. The detention was consequently without lawful authority and satisfied the common-law ingredients of false imprisonment. The majority rejected the contention that damages were governed exclusively by the EU-law sufficiently serious breach test.

Dissent

Sales LJ considered that a published policy could in principle qualify as the relevant legal act and that the EIG satisfied Article 2(n). He would have dismissed the four detainees’ appeals and allowed the Secretary of State’s appeal in SS’s case. Alternatively, he would have applied the EU sufficiently serious breach test and denied substantive damages.

1. Court of Appeal (Civil Division): Four detainees’ appeals allowed; the Secretary of State’s appeal in SS’s case dismissed.
2. High Court (Administrative Court), Garnham J: Claims by Hemmati and Khalili dismissed: [2016] EWHC 1394 (Admin).
3. High Court (Administrative Court), Irwin J: Claims by Abdulkadir and Mohammed dismissed: [2016] EWHC 1504 (Admin).
4. High Court (Administrative Court), Howell QC: SS succeeded on liability in relation to unlawful detention: [2017] EWHC 1295 (Admin).