THE KING on the application of MH (ERITREA) v SECRETARY OF STATE FOR THE HOME DEPARTMENT

An appeal is academic where its determination can no longer affect the parties or the public. A legal aid statutory charge does not preserve an otherwise academic appeal or ordinarily justify deciding it.

Where detention is conceded to have been wholly unlawful, compensatory damages for false imprisonment cover all resulting harm. The particular legal ground of unlawfulness does not increase that compensation.

When only costs remain, the court may consider success and, where appropriate, whether the likely merits outcome is tolerably clear. On a complex issue considered solely for costs, an appellate court should avoid offering a lightly reasoned merits view. It may be sufficient to conclude that the first-instance decision was not obviously wrong.

The appellant, an Eritrean national, claimed asylum in the United Kingdom. Italy was deemed to have accepted responsibility under the Dublin III Regulation, but the Secretary of State’s asylum unit later invited the appellant to a substantive interview and interviewed him. The Secretary of State subsequently certified the claim on safe-third-country grounds, proposed removal to Italy and detained the appellant.

The appellant sought judicial review of the certification, proposed transfer and detention. Murray J held that the substantive interview did not establish an exercise of the discretion under article 17(1) by which the United Kingdom would assume responsibility for the asylum claim. The Secretary of State later conceded, following Hemmati [2019] UKSC 56, that the detention had been unlawful throughout. She also undertook to consider the asylum claim in the United Kingdom after the country ceased participating in the Dublin system.

The central questions were whether the appeal had become academic and, if so, whether the court should nevertheless consider its merits to determine costs.

1. Appeal dismissed; permission to appeal against the costs decision refused. The appeal was academic because its resolution could no longer affect the appellant’s asylum claim, his entitlement to false-imprisonment damages or any wider public interest. The United Kingdom no longer participated in the Dublin system, and the transfer decision had been withdrawn.

2. Following Hemmati [2019] UKSC 56, detention which lacked lawful authority amounted to false imprisonment. A person subjected to such detention was entitled to compensatory damages for all resulting loss, including any properly established aggravated damages. The amount did not depend upon which particular ground of EU or domestic law made the detention unlawful. On the facts, establishing that there had been no lawful basis for removal to Italy would therefore make no material difference to damages.

3. The possible incidence of the legal aid statutory charge did not prevent the appeal from being academic and was not a relevant reason for hearing an otherwise academic appeal. The court could nevertheless determine a freestanding dispute about costs. Where a claimant had been wholly successful, costs would ordinarily follow. Where success was partial, no order would usually be appropriate unless it was tolerably clear who would have won.

4. The appellant had not succeeded in the live certification challenge. The certificate had been withdrawn because the United Kingdom left the European Union, not because the proceedings vindicated his legal argument. Relief obtained for a reason unconnected with the merits did not entitle him to costs.

5. The court had heard full argument and could therefore consider whether the likely result was tolerably clear, although that course would rarely be appropriate. Whipple LJ, with whom Baker LJ agreed, held that it was sufficient to conclude that Murray J had not been obviously wrong. The court should avoid offering a lightly reasoned view on a complex and potentially significant issue of EU law merely in the context of costs. They departed in that respect from Elisabeth Laing LJ’s assessment that the competing arguments concerning article 17 were finely poised.

6. As procedural guidance, parties should not file unsolicited post-hearing submissions. A party wishing to make further submissions should normally raise the matter at the hearing or notify the other parties and seek the court’s permission promptly afterwards.

1. Court of Appeal (Civil Division): The appeal was dismissed as academic. Permission to appeal against Murray J’s costs decision was refused: [2022] EWCA Civ 1296.

2. High Court, Administrative and Planning Court: Murray J dismissed the live challenge. He held that the substantive asylum interview did not, without evidence of a decision engaging article 17(1) of the Dublin III Regulation, establish that the United Kingdom had assumed responsibility for examining the asylum claim. He made no order as to costs.