Five asylum applicants were detained pending transfer under the Dublin III Regulation. Detention on grounds of a risk of absconding required objective criteria defined by law. The Supreme Court held that the Home Office guidance then in use did not supply those criteria. All five were entitled to damages for false imprisonment.
Detention pending transfer
The five respondents arrived in the United Kingdom illegally and claimed asylum. Inquiries showed that each had already claimed asylum in at least one other European Union member state. The Secretary of State asked those states, under Parliament and Council Regulation (EU) No 604/2013 (the Dublin III Regulation), to take responsibility for examining the claims, and each agreed. The respondents were detained under paragraph 16(2) of Schedule 2 to the Immigration Act 1971 pending removal. The Court of Appeal and the Supreme Court decided the appeals on the agreed assumption that use of the Dublin procedure was the only ground for detention.
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The Supreme Court was not asked to decide whether removal itself was lawful. Challenges by the first and second respondents to removal had already failed and had not been taken further. The fifth respondent, SS, had pretended to be a child, but was found not to have been a child when detained. The issue was whether detention used to secure a Dublin transfer had a lawful basis.
The EU condition for detention
Article 28 does not allow a person to be detained merely because a Dublin transfer is under way. Detention to secure transfer is permitted only where there is a significant risk of absconding, identified by an individual assessment, and only so far as detention is proportional and less coercive measures cannot be applied effectively. Article 2(n) defines a risk of absconding as reasons in the individual case, based on objective criteria defined by law, for believing that the person may abscond.
In Al Chodor the Court of Justice of the European Union held that member states must establish those criteria in a binding provision of general application. Settled case law confirming an administrative practice is not enough. If the criteria are absent, article 28(2) does not apply and the detention is unlawful. The provision must give a legal basis and be clear, predictable and accessible, and it must protect against arbitrariness. The Court of Justice did not expressly adopt the Advocate General’s view that the criteria had to be set out in legislation.
Why the published policy failed
The Secretary of State relied on Chapter 55 of her Enforcement Instructions and Guidance of 23 October 2015, the Hardial Singh limits on immigration detention, and the domestic duty to follow a published policy unless there is good reason not to. In the Court of Appeal, Sir Terence Etherton MR and Peter Jackson LJ held that neither Chapter 55 nor the Hardial Singh principles met the Al Chodor test, so every detention breached article 28(2) and damages for false imprisonment followed. Sales LJ dissented. He considered that Chapter 55 complied and that, if it did not, damages were available only for a sufficiently serious breach of EU law, which this was not.
Lord Kitchin, with whom Lady Hale, Lord Reed, Lord Wilson and Lady Arden agreed, held that Chapter 55 did not satisfy articles 28(2) and 2(n). It was general guidance on immigration detention. It did not mention Dublin III. It did not say that a person must not be detained solely for being in that procedure, that a significant risk of absconding was the only permitted basis, or that detention had to be proportional. The Hardial Singh principles require the power to be used for its statutory purpose, for a reasonable period and with reasonable diligence. They do not supply objective criteria for assessing whether a person facing transfer may abscond.
Paragraph 55.3.1 listed factors which might influence detention, but the list was not exhaustive and was not a set of absconding criteria. Only one factor referred to absconding in terms. Others might justify detention for different purposes, and some, including being under 18 or having a history of torture or ill health, were difficult to relate to absconding at all. A person in the Dublin procedure could not know which criteria would be used or what the limits of the decision-maker’s flexibility were. There was no finding that asylum seekers knew of the Regulation or of Al Chodor in a way that filled that gap. Lord Kitchin contrasted regulations made on the day of the Al Chodor judgment: they required specified factors to be considered, and the relevance of each to absconding was plain. Chapter 55 lacked that certainty and predictability, so it was not law for the purposes of article 2(n). He left open whether a statement of policy, and public law adherence to it, could ever amount to the binding provision required.
Why the common law claim succeeded
The Court did not decide whether any respondent in fact posed a significant risk of absconding. Without the required provision, article 28(2) was inapplicable, and the decisions fell outside any permissible use of the 1971 Act power. Section 2(1) of the European Communities Act 1972 meant that the power was also constrained by the applicable EU obligations. False imprisonment has two elements: imprisonment, and the absence of lawful authority. The missing criteria went to the heart of the decision to detain.
Lord Kitchin rejected the argument that compensation depended on the Francovich and Factortame conditions, including a sufficiently serious breach. Those conditions govern a claim for damages under EU law. They do not restrict the common law tort. Article 5 of the Convention protects liberty and requires release and compensation where detention is not in accordance with a procedure prescribed by law. The source of the missing authority, domestic or European, did not justify treating the respondents differently, and the domestic claim does not depend on the law having been clear. A refusal of bail to the third respondent did not turn his detention into detention by order of the court: a bail decision does not determine whether detention is lawful.
The Court also rejected the contention that only nominal damages were payable because criteria of the kind later made would still have led to detention. Nominal damages may be appropriate where the person could and would have been detained under the legal and policy framework that already existed. It is no answer that the detention would have been lawful had the law been different. The alternative claim for damages under EU law did not need to be decided, because it was not said that any such award would exceed damages for false imprisonment.
Verdict: The Supreme Court unanimously dismissed the Secretary of State’s appeal. The detentions were unlawful and all five claimants were entitled to damages for false imprisonment. If the amount could not be agreed, it was to be assessed in the County Court. The lawfulness of removal itself was outside this appeal.
