Yesterday, 4th October, the Court of Appeal has handed down a landmark judgment pertaining to the detention of individuals under Dublin III Regulation.
Presiding was Master of the Rolls, Sales and Jackson LJJ. It was a 2:1 win with Sales LJ dissenting.
Background of the Appeals
The conjoined hearing of appeals related to three judgments that covered the cases of five individuals who were placed in detention for periods pending possible removal to other EU Member States pursuant to the asylum claim arrangements under the so-called Dublin III Regulation.
The Appellants were:
- Abdulkadir and Mohamed [the lead cases challenging removals to Austria and detention under Article 28 of the Dublin III Regulations, appealing against Irwin J’s decision (as he then was)  EWHC 1504]
- Khalili and Hemmati [the lead cases challenging removals to Bulgaria and detention under Article 28 of the Dublin III Regulations appealing Garnham J’s judgment  EWHC 1394(Admin)]
- SS was the lead case on Article 28 Dublin III Regulations. SS was the only case that was successful on this issue before the High Court. The Secretary of State appealed Mr John Howell QC’s judgment  EWHC 1295 (Admin).
The appeals related to the effect and meaning of article 28 and 2(n) of Dublin III - which relate to the detention of an individual for the purpose of transfer to another Member State under that Regulation - and the effect of the judgment of the Court of Justice of the European Union (CJEU) in case C-528/15 Al Chodor
EU:C:2017:2013;  4 WLR 125. The issues to be determined by the Court were as follows:
- Whether Hardial Singh principles and/or the Secretary of State’s published policy in Chapter 55 of the Enforcement Instructions Guidance (EIG) satisfied article 2 (n) and article 28 in relation to the periods of detention of the Appellants.
- If not, are damages payable in respect of the detention of the appellants either for a tort of false imprisonment or EU law under Factortame where damages are recoverable for a sufficient serious breach of EU law.
- The cases of Khalili and Hemmati also raised a distinct Hardial Singh issue.
The argument was that the only ground for detention was that specified under Article 28(2), that there was a significant risk of absconding.
It is notable that the Secretary of State conceded that article 28 had direct effect.
The Master of the Rolls and Peter Jackson LJ’s majority decisions were:
- In light of Al Chodor, it was clear that neither Hardial Singh principles nor Chapter 55 of the EIG had satisfied the requirements under article 28 and article 2 (n). They had not understood to be in dispute that Hardial Singh’s principles were insufficient. A list of criteria, some of which were relevant to absconding, and some of which were not, did not satisfy the Al Chodor requirements. They were not a “framework of certain predetermined limits” as required by Al Chodor for the deprivation of a fundamental right to liberty [article 6 right under the Charter].
- Domestic law of false imprisonment governs whether damages were payable in relation to detention.
- As the appeal was allowed under Article 28, the Court did not see it necessary to determine the Hardial Singh point raised in Khalili and Hemmati.
The court held that the Appellants’ appeal be allowed and will be subject to further directions pending any appeal by the Secretary of State.
Counsel Instructed: Nathalie Lieven
QC of Blackstone Chambers, Hugh Southey
QC of Matrix Chambers, David Chirico
of One Pump Court; Greg O’ Ceallaigh
, Irena Sabic
, Mark Symes
and Raza Halim
of Garden Court Chambers.
of Duncan Lewis Solicitors instructed by SS and Khalili and Krisha Prathepan
of Duncan Lewis Solicitors instructed by Abdulkadir and Mohammed.
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