The claimant third-country nationals arrived illegally in the United Kingdom and claimed asylum. In each case a member state of the European Union in which the claimant had previously sought asylum agreed to take him or her back, pursuant to Parliament and Council Regulation (EU) No 604/2013, and removal directions were set. The claimants were detained pending their removal, pursuant to the discretionary power to detain conferred by paragraph 16(2) of Schedule 2 to the Immigration Act 1971, as substituted and amended. At the relevant time the Home Secretar’s policy on detention pending removal were published in Chapter 55 of her Enforcement Instructions and Guidance. The claimants sought judicial review of their detention on the basis that it was in breach of article 28(2) of the Regulation, which provided that a person who was being transferred to another member state pursuant to the take back procedure could be detained where there was a “significant risk of absconding”, 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. The claims of the first to fourth claimants were dismissed but the fifth claimant succeeded in his liability claim, with damages to be assessed at a later date. The Court of Appeal allowed the appeals of the first to fourth claimants and dismissed the Home Secretary’s appeal, holding that (i) the claimants’ detention had been in breach of article 28(2) because neither the common law principles regarding detention pending deportation nor the policy in Chapter 55 specified criteria for deprivation of the fundamental right to liberty with the required clarity, predictability, accessibility and protection against arbitrariness within a framework of predetermined limits to satisfy article 2(n); and (ii) the Home Secretary’s exercise of her discretion to detain the claimants, pursuant to paragraph 16(2) of Schedule 2 to the Immigration Act 1971, had been unlawful because it had been purportedly pursuant to the policy in Chapter 55, which itself was unlawful in so far as it failed to give effect to articles 2(n) and 28(2) of the Regulation, so that the claimants had been detained unlawfully and were entitled to damages for false imprisonment.
On the Home Secretary’s appeal—
Held, appeal dismissed. (1) For the purposes of establishing whether an applicant for international protection who was subject to a transfer procedure under Parliament and Council Regulation (EU) No 604/2013 could lawfully be detained pursuant to article 28(2) on the ground that there was a significant risk of absconding, article 2(n) and article 28(2) of the Regulation required that the objective criteria underlying the reasons for believing that an applicant might abscond had to be established by a member state in a binding provision of general application. The Home Secretary’s policy in relation to detention pending removal in Chapter 55 of the Enforcement Instructions and Guidance did not establish objective criteria for the assessment of whether such an applicant might abscond, its contents did not constitute a framework with certain predetermined limits nor did it set out the limits of flexibility of the relevant authorities in assessing the circumstances of each case in a manner which was binding and known in advance. Therefore, Chapter 55 did not satisfy the requirements of article 2(n) and article 28(2). Further, although a policy statement such as that in Chapter 55 had significant legal effects, the policy in Chapter 55 did not have the necessary qualities of certainty and predictability to constitute a binding provision of general application so as to amount to a “law” within the meaning of article 2(n) of the Regulation. Accordingly, the claimants’ detention had been in breach of article 28(2) (paras 52-53, 57-65, 69, 72, 74, 80).
(2) The power to detain an applicant for international protection who was subject to a procedure under Parliament and Council Regulation (EU) No 604/2013 was conferred by paragraph 16(2) of Schedule 2 to the 1971 Act, as substituted and amended, and was constrained in various ways, including by the provisions of the Regulation itself and, in these cases, the Home Secretary’s policy in Chapter 55 of the Enforcement Instructions and Guidance. Since the Home Secretary had exercised her power to detain the claimants pursuant to the policy in Chapter 55, which was unlawful in so far as it failed to give effect to article 2(n) and article 28(2) of the Regulation, with the result that article 28(2) did not apply, the Home Secretary’s decision to detain the claimants fell outside the scope of any legitimate exercise of the discretion conferred by paragraph 16(2) of Schedule 2 to the 1971 Act. Therefore the ingredients of the tort of wrongful imprisonment, namely the fact of imprisonment and the absence of lawful authority for it, were present in each claimant’s case. Further, the right under domestic law to claim damages for wrongful imprisonment was not dependent on the law being clear nor upon the nature of the illegality, such as whether it was the result of a failure to comply with European Union legislation. Therefore, the claimants had been detained unlawfully and were entitled to damages under domestic law for false imprisonment. It was not the case that damages should be nominal only since it was no answer to a damages claim for unlawful imprisonment that the detention would have been lawful had the law been different. Accordingly, the Court of Appeal had been right so to hold and the proceedings would be transferred to the County Court for the quantum of damages to be assessed if not agreed (paras 88-89, 98, 100-101, 112, 114-115).
Quaere. Whether a statement of policy and public adherence to it can ever amount to a binding provision of general application and so a “law” within the meaning of article 2(n) of Parliament and Council Regulation (EU) No 604/2013 (para 79).
Decision of the Court of Appeal [2019] QB 708 affirmed.
Sir James Eadie QC, Robin Tam QC, Alan Payne QC and Julie Anderson (instructed by Treasury Solicitor) for the Home Secretary.
Michael Fordham QC and Raza Halim (instructed by Fadiga & Co) for the claimant in the first case.
Michael Fordham QC and David Chirico (instructed by Duncan Lewis Solicitors, Luton) for the claimant in the second case.
Hugh Southey QC and Greg Ó Ceallaigh (instructed by Duncan Lewis Solicitors, Harrow) for the claimants in the third and fourth cases.
Michael Fordham QC and Irena Sabic (instructed by Duncan Lewis Solicitors, Luton) for the claimant in the fifth case.