R (on the application of Hemmati and others) v Secretary of State for the Home Department

Detention under article 28(2) of the Dublin III Regulation requires objective criteria for assessing a significant risk of absconding. Those criteria must be contained in a binding provision of general application. They must establish predetermined, accessible and predictable limits on administrative discretion.

A general immigration detention policy which neither identifies the applicable criteria nor confines decision-makers within such limits cannot authorise detention under article 28(2). Detention in those circumstances falls outside the domestic statutory power and constitutes false imprisonment. Liability under that domestic tort does not depend on satisfying the more restrictive conditions governing damages for breach of European Union law. Nominal damages are appropriate only where detention could and would have occurred lawfully under the legal and policy framework actually in force.

Five asylum seekers were detained under Schedule 2 to the Immigration Act 1971 pending proposed transfers to other member states under the Dublin III Regulation. The Secretary of State relied upon Chapter 55 of the Enforcement Instructions and Guidance as the relevant detention policy.

At first instance, the respondents obtained differing results in their challenges to detention. The Court of Appeal, by a majority in [2018] EWCA Civ 2122, held that Chapter 55 did not satisfy articles 28(2) and 2(n), and that all five respondents were entitled to damages for false imprisonment.

The Secretary of State appealed. The principal questions were whether Chapter 55 supplied objective criteria defined by law for assessing a significant risk of absconding and, if not, whether the respondents could recover damages under domestic law or only under the European Union law principles governing state liability.

1. Appeal dismissed unanimously. Lord Kitchin, with whom Lady Hale, Lord Reed, Lord Wilson and Lady Arden agreed, held that Chapter 55 of the Enforcement Instructions and Guidance did not satisfy articles 28(2) and 2(n) of the Dublin III Regulation. All five respondents had been detained unlawfully and were entitled to damages for false imprisonment.

2. Articles 28(2) and 2(n), as interpreted in Al Chodor, require objective criteria for assessing whether an applicant may abscond to be established in a binding provision of general application. The provision must create predetermined limits which are clear, accessible and foreseeable. It must confine administrative flexibility in a manner which is binding and known in advance.

3. Chapter 55 was a general immigration detention policy rather than a policy directed to Dublin III transfers. It did not state that a significant risk of absconding was the only permissible basis for such detention, and it did not require proportionality. Its non-exhaustive list of factors did not identify which criteria governed the assessment of absconding risk. It therefore supplied neither objective criteria nor a framework of predetermined limits. The Hardial Singh principles were also insufficient because they controlled the purpose and duration of detention rather than defining criteria for assessing a risk of absconding.

4. Chapter 55 also lacked the certainty and predictability necessary to constitute “law” for articles 28(2) and 2(n). The wider question whether a sufficiently precise policy, supported by the public law duty of adherence, could ever constitute a binding provision of general application was left open.

5. The failure to establish the required criteria rendered article 28(2) inapplicable. The resulting decisions fell outside any permissible exercise of the detention power in paragraph 16(2) of Schedule 2 to the Immigration Act 1971. The defect was fundamental and material to each decision to detain. The two elements of false imprisonment—intentional detention and absence of lawful authority—were therefore established.

6. The conditions governing state liability for damages under Francovich and Factortame did not restrict the respondents’ domestic claims. A common law claim for false imprisonment does not depend upon the clarity of the infringed rule or proof that the state manifestly and gravely exceeded its discretion.

7. The respondents were not confined to nominal damages. Such an award may be appropriate where detention could and would have been lawful under the existing framework. It was no answer that detention might have been lawful had different legislation been in force. Quantum was to be assessed in the County Court if not agreed.

1. United Kingdom Supreme Court: Dismissed the Secretary of State’s appeal and affirmed that the respondents had been falsely imprisoned and were entitled to damages: [2019] UKSC 56.

2. Court of Appeal: By a majority, allowed the appeals of the first to fourth respondents and dismissed the Secretary of State’s appeal concerning the fifth respondent. It held that all five detentions breached articles 28(2) and 2(n) of the Dublin III Regulation and constituted false imprisonment: [2018] EWCA Civ 2122.

3. High Court: Garnham J rejected the first and second respondents’ detention claims: [2016] EWHC 1394 (Admin); [2016] 1 WLR 4243. Irwin J dismissed the third and fourth respondents’ claims: [2016] EWHC 1504 (Admin). Mr John Howell QC upheld the fifth respondent’s Dublin III detention challenge: [2017] EWHC 1295 (Admin); [2017] 1 WLR 3641.