The Supreme Court has unanimously ruled that individuals detained under Articles 28 and 2(n) of the Dublin III Regulations solely for the purpose of removal was unlawful. This affects hundreds or potentially thousands of individuals detained between 1 January 2014 and 15 March 2017, who may be entitled to damages for their false imprisonment.
Read judgment here: R on the application of Hemmati and others (Respondents) v Secretary of State for the Home Department (Appellant)  UKSC 56.
Public Law solicitors Bahar Ata and Krisha Prathepan challenged the detention of our clients to be contrary to Articles 28 and 2(n) of Dublin III Regulations. The Appeals related to the effect and meaning of Article 28 and 2(n) of Dublin III 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 Supreme Court upheld the majority judgment of the Court of Appeal (COA) ruling that all the Respondents were unlawfully detained and are entitled to damages under the domestic law for false imprisonment.
Presiding at the Supreme Court were Kitchin L, Hale L, Reed L, Wilson L and Arden L.
At the COA the Master of the Rolls, Sales and Jackson LJJ were presiding. It was a 2:1 win with Sales LJ dissenting. The COA held that detention of the Appellant was contrary to Dublin III Regulations. The Court further held that the UK did not have sufficient laws in place to determine whether an individual is at risk of absconding. Accordingly, the COA concluded that all of the Appellants were unlawfully detained because the UK did not comply with the requirements of Article 28 and 2(n).
The Court also rejected the argument put forward by the Secretary of State that even if the Appellants were unlawfully detained, no damages were payable because of the ‘sufficiently serious breach’ test. Therefore the Court held that the appellants are entitled to damages for the tort of imprisonment.
The Secretary of State appealed this judgment to the Supreme Court.
The conjoined hearing of appeals related to three judgments under appeal.
The Respondents at the Supreme Court were:
- Abdulkadir and Mohamed [the lead cases challenging removals to Austria and detention under Article 28 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 Dublin III Regulations appealing Garnham’s 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 issues to be determined by the Supreme Court were:
- whether the detention of each respondent was lawful given that Article 28 of the Dublin III Regulation permits detention where there is a “significant risk of absconding”, “risk of absconding” being defined in article 2(n) as the existence of reasons in an individual case, based on objective criteria defined by law, to believe that the person might abscond; and, if the detention was not lawful
- whether damages are payable either under domestic law for false imprisonment or pursuant to what is known as the Factortame principle established in Brasserie du Pecheur SA v Federal Republic of Germany; R v Secretary of State for Transport; Ex p Factortame Ltd No 4 (Joined Cases C-46/93 and C-48/93)  QB 404
The pertinent period to which this judgment applies is 1 January 2014 to 11.59am 15 March 2017. The date 15 March 2017 is relevant because this was when Al Chodor was handed down. It must also be noted that UK was party to the Court of Justice of the European Union (CJEU) proceedings and made submissions in the case of Al Chodor.
At midday on the 15 March 2017, the Secretary of State for the Home Department passed legislation which defined the objective criteria for establishing the risk of absconding this being the Transfer for Determination of an Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017. Case of Omar and Others
of Duncan Lewis, representing] which challenges the 2017 Regulations is currently stayed behind this case at the Supreme Court.
In the instant case the Supreme Court are clear in their conclusion where it is held at para 114:
“The respondents’ claims do not require remittal for any further consideration of the lawfulness of their detention. They were all detained unlawfully and are entitled to damages under domestic law for false imprisonment. I would transfer these proceedings to the County Court for the assessment of the quantum of those damages, if that quantum cannot be agreed”.
Public Law director Bahar Ata
“The Secretary of State policy of using detention sparingly and as a last resort is often ignored in favour of detention. This is a significant judgment recognising that use of power to detain is exercised in almost all circumstances without carrying out an assessment on risk of absconding or taking into account individual circumstances.
The impact of this judgment is widespread as it affects potentially thousands of individuals who had been unlawfully detained while their cases are processed under the Dublin III Regulations.”
Instructing lawyers: Bahar Ata
for SS and Khalili and Krisha Prathepan
for Abdulkadir and Mohammed, Kaweh Beheshtizadeh from Fadiga for Hemmati.
Counsel instructed: Michael Fordham QC of Blackstone Chambers, Hugh Southey QC of Matrix Chambers, David Chirico of One Pump Court; Greg O’ Ceallaigh, Irena Sabic and Raza Halim of Garden Court Chambers.