In Hemmati & Ors  EWCA Civ 2122, the Court of Appeal held by a majority that the detention of five asylum seekers pending removal to other Member States had been unlawful because neither the Enforcement Instructions and Guidance Chapter 55 (“EIG”) at the material time, nor the principles contained in Hardial Singh (1984) 1 WLR 704 had satisfied the requirements of article 2(n) and article 28 of Regulation 604/2013 (“Dublin III”). It was further held that the fundamental human right to freedom and liberty did not exist because of EU law or the ECHR. Rather, it is the common law that provides the remedy for an infringement, whether by an action for habeas corpus or for damages. Upon further appeal by the Home Office, the issues for the Supreme Court are whether (i) the published policy in Chapter 55 of the EIG satisfied the requirements of article 2(n) and article 28 of Dublin III, and (ii) if not, whether damages are payable for the detention of the five asylum seekers either for the tort of false imprisonment or pursuant to EU law under the principle established by the CJEU in Factortame (C-46/93, EU:C:1996:79) whereby damages are recoverable for a “sufficiently serious” breach of EU law. At common law, false imprisonment is a tort. It is a civil wrong giving rise to a claim for damages. As held in Hague  UKHL 8 and Lumba  UKSC 12, the tort has two ingredients (i) the fact of imprisonment, and (ii) the absence of lawful authority to justify it.
HH, FK, JA, JM and SS were asylum seekers held in detention for various periods pending possible removal to other EU Member States pursuant to the asylum arrangements under Dublin III. In particular, the principal issues in the appeal concern the meaning and effect of article 2(n) and article 28 of Dublin III. Three different judges considered the judicial review proceedings brought by the five claimants at first instance. Garnham J dismissed HH and FK’s claims. Irwin J dismissed JA and JM’s claims. Mr Howell QC allowed SS’s claim. The appeals by HH, FK, JA and JM were later joined with the Home Secretary’s appeal in SS in the Court of Appeal where Etherton MR and Peter Jackson LJ (Sales LJ dissenting) held that the five asylum seekers were entitled to damages for the tort of false imprisonment as a result of the failure of the Home Office to implement correctly the requirements of article 2(n) and article 28 of Dublin III. The Home Secretary appealed to the Supreme Court where Baroness Hale, Lady Arden and Lords Reed, Wilson and Kitchin heard the arguments advanced by the parties. Article 2(n) and article 28 relate to the detention of an individual for the purpose of transfer to another Member State under Dublin III.
The issues for the appeals in the Court of Appeal were recast in light of Al Chodor (C-528/15, EU:C:2017:213) in order to allow the court to consider the meaning and effect of that judgment which was delivered after the decisions of Garnham J and Irwin J, but before the judgment of Mr Howell QC.
False imprisonment is a tort of strict liability and it is actionable without proof of special damage. Section 3 of the Immigration Act 1971, requires that a person who is not a UK citizen (or person with a right of abode in the UK) must be be granted leave to enter, or leave to remain, in the UK. A person without a current valid leave to remain is subject to administrative removal or deportation and wide-ranging powers of detention pending deportation or removal are available to the Home Secretary under Schedule 2 and Schedule 3 of the 1971 Act.
The five asylum seekers submitted that article 28 required (i) a significant risk of absconding, (ii) an individualised assessment of the requirement to detain in order to secure a transfer, (iii) that any less coercive arrangements were also ineffective, and (iv) that detention was proportionate. They further submitted that the Home Secretary was disabled from lawfully detaining them by reason of a combination of article 2(n) and article 28 and the inadequacy of the domestic legal regime.
Allowing the appeals, Sir Terence Etherton MR and Peter Jackson LJ wrote a brief judgment where they rejected the lengthy proposals made by Sales LJ in his 158-paragraph dissenting opinion in support of dismissing the appeals. They decided that the Hardial Singh principles were insufficient to satisfy the requirements of article 2(n) as they were not criteria defined by law and they did not specify the criteria for deprivation of liberty with the clarity, predictability, accessibility and protection against arbitrariness required by the CJEU in Al Chodor and Etherton MR and Jackson LJ held that:
164. The legal touchstone applied by the CJEU for assessing compliance with article 28(2) and article 2(n) was whether the provisions relied upon for detention had the requisite legal basis, and the safeguards of clarity, predictability, accessibility and protection against arbitrariness within a framework of certain predetermined limits.
165. The decision of the CJEU was that settled case law confirming the consistent administrative practice on the part of the Czech Foreigners Police Section was insufficient to satisfy that legal touchstone.
166. We consider that, in the light of the reasoning and the decision of the CJEU in Al Chodor, it is clear that neither the Hardial Singh principles nor the Secretary of State’s published policy in Chapter 55 of the EIG satisfied the requirements of article 28 and article 2(n) in relation to the period of detention of the appellants.
167. By the end of the oral hearing of the appeal, we did not understand it to be in dispute that the Hardial Singh principles are insufficient to satisfy the requirements of article 2(n). That is in any event our view.
Etherton MR and Jackson LJ opined that in substance the Hardial Singh principles impose a reasonableness test. Lord Dyson explained in Lumba that under Hardial Singh the power to detain must be exercised reasonably and for the prescribed purpose of facilitating deportation. Overall, they judged that the principles do not specify criteria for deprivation of liberty with the clarity, predictability, accessibility and protection against arbitrariness “within a framework of certain predetermined limit” required by Al Chodor.
Equally, the EIG failed to satisfy those requirements because they contained no reference to Dublin III and no direction that in an article 28 case the sole ground for detention was a significant risk of absconding. Indeed, the EIG did not refer to the need for proportionality under article 28(2).
Furthermore, the EIG did not give any clarification of what constituted a “significant risk of absconding” and only gave general advice about the exercise of the power to detain. That was not surprising since the EIG intended to cover all immigration detainees, and not merely those subject to Dublin III. Etherton MR and Jackson LJ approved the outcome in Omar  EWHC 689 where no disagreement arose that, to implement Al Chodor, the criteria contained in the Transfer for Determination of an Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017 had to be “both mandatory and exhaustive”, failing which the necessary protections of certainty, predictability and accessibility would not be conferred nor the protection against arbitrariness. Their Lordships approved Lambert J’s view in Omar that:
44. The purpose of the criteria is to limit the basis upon which the determination of risk may be made; their existence provides sufficient guarantee in terms of legal certainty and ensures that the discretion enjoyed by the individual authorities responsible for applying the criteria for assessing the abscond risk is exercised within a framework of certain pre-determined markers.
On the issue of damages for unlawful detention, they found that the “sufficiently serious breach” test prescribed in Factortame did not govern whether damages were payable in relation to the detention of each of the appellants. On property analysis, it was the domestic law of false imprisonment that governed their claim for damages. Hence the majority agreed with the submission that Sales LJ (as he then was) was off target to reject this point, argued by Mr Southey QC, as “too simplistic” because Lord Dyson had held in Lumba:
65. All that a claimant has to prove in order to establish false imprisonment is that he was directly and intentionally imprisoned by the defendant, whereupon the burden shifts to the defendant to show that there was lawful justification for doing so.
Furthermore, in Kambadzi  UKSC 32 it was Lord Hope’s view that “where there is an executive discretion to detain someone without limit of time, the right to liberty demands that the cause of action [for false imprisonment] should be available if the discretion has not been lawfully exercised.” Both Lord Hope and Baroness Hale added that the person conducting the unlawful detention is liable even if he or she acted in good faith and without any negligence. The Court of Appeal thus held that:
193. The Factortame principle has no relevance because the individual right of each human being to liberty exists save insofar as it is legitimately cut down by law. The right to liberty does not exist because of the EU and its Charter of Fundamental Rights any more than it is exists because of the Council of Europe and the Convention. As Article 1 of the 1948 Universal Declaration of Human Rights states: “All human beings are born free”.
194. Our common law has provided the remedy for an infringement of that inherent fundamental human right, whether it be habeas corpus (now governed by statute) or damages. Unlike Factortame these appeals do not concern infringement of rights which are to be found only in EU law.
The Home Secretary had purported to exercise her discretion under paragraph 16(2) of Schedule 2 of the 1971 Act to detain persons liable to be removed from the UK pending a decision on whether to give directions for removal and pending any subsequent removal.
The detention of the five asylum seekers purportedly pursuant to the policy in the EIG was unlawful because it failed to give effect to article 2(n) and article 28. Kambadzi confirmed the majority’s decision and so they remitted the cases for assessment of the amount of damages.
For the Home Secretary, it remained Sir James Eadie QC’s point of departure during his submissions to the Justices of the Supreme Court that to construe “law” to mean only statute and legislation bizarrely diverges from the strict and longstanding view of the Strasbourg Court that for the purposes of deprivation of liberty and article 5 of the ECHR the meaning of “law” goes well beyond statute. He also argued that Chapter 55 of the EIG was itself built around a body of case law that respected that tradition, something that the CJEU inevitably followed in detention cases.
He further relied on the earlier case of Nouazli  UKSC 16 where the Supreme Court upheld Hardial Singh and dismissed a complaint that it is no answer to lack of legal certainty that the national courts interpret the measures compatibly with EU law. Lord Clarke held that Safir (C-118/96,  QB 451), a tax case which was not concerned with detention, provided no basis to suppose that EU law requires more in this particular context than the ECHR. He instead preferred the point made by the Home Secretary that the Hardial Singh limitations form part of what has been clearly accepted by European courts as meeting the requirements imposed by law. Thus, Sir James submitted, that the Hardial Singh principles are “compatible” with EU law while simultaneously arguing that interpreting “law” to mean only statute would produce very serious ramifications for the domestic regime putting it at risk.
He argued that nothing in Al Chodor suggests that “law” within the meaning of article 2(n) means anything other than the meaning of the word in the Strasbourg case law. Indeed, if anything, paragraphs 41, 42, 43 and 44 of Al Chodor confirm this analysis (according to Sir James at least).
However, the weakness of this neat argument was exposed during the hearing when Lord Wilson questioned Sir James on Mr Fordham QC’s rival position that policy, such as Chapter 55 of EIG, is not binding and can be departed from (which is “quite a big point” in Lord Wilson’s opinion). Lady Hale was quite intrigued that the power of detention under immigration legislation is very broad. It is constrained by the Hardial Singh principles which are established independently by judicial decision, and the policy is a means to implement those principles. Her Ladyship also observed that in distinction to VM v United Kingdom  ECHR 312 (which the Home Secretary invoked) the rules were not a product of the implementation policies of the actual detainer (as in the present case) but were the product of an Act of Parliament and case law. Therefore, despite the superficially attractive arguments made on behalf of the Home Secretary, Lady Hale asked:
Might there not be a distinction between rules which are set out by Acts of Parliament, statutory instrument or the courts and policies which are derived from the actual detainer?
Notably, in July 2019, the Home Office wholly rejected the UK Parliament Human Rights Committee’s important recommendation to impose a 28-day time limit on immigration detention. The Chair of the Committee, Harriet Harman reminded the Home Office that “immigration detention is arbitrary, unfair and breaches human rights” and that it is characterised by repeated detention and release which “shows that it must be reformed” because of its indefinite nature.
The European Union Withdrawal Act 2018 specifically excludes from retained EU law (i) the principle of supremacy of EU law in relation to future enactments or rule of law, (ii) the Charter of Fundamental Rights except insofar as rights are replicated in instruments of retained EU law anyway, and (iii) the Francovich (C-6/90 and C-9/90, EU:C:1991:428) state liability principle of EU law – which was later extended to all cases of infringement by Factrotame – for acts or omissions arising after exit day or not litigated within two years of Brexit (31 October 2019 on the present footing).
If the Supreme Court upholds the reasoning espoused by Etherton MR and Jackson LJ, then no doubt will remain that the Home Office has been detaining thousands of asylum seekers unlawfully in very costly immigration removal centres scattered across the UK. The Human Rights Committee’s report records that between 2012 and 2017 the Home Office has paid £21 million in damages for unlawful detention claims and the annual detention costs for the year ending March 2018 were £108 million, or £87.7 per day per detainee, and almost half of the 24,700 people entering immigration detention in 2018 had sought asylum in the UK at some point during their stay.