Government guidance on the detention of asylum seekers pending their removal is unlawful in failing to establish objective criteria for assessing whether there is a risk of absconding, the UK Supreme Court has held.

Five judges unanimously held that five asylum seekers were entitled to damages for their detention under chapter 55 of the Enforcement Instructions and Guidance (“EIG”), the Home Secretary’s published policy in relation to detention pending removal.

Each claimant had arrived in the UK illegally and claimed asylum. In each case, the Home Secretary requested another member state run which they had already claimed asylum to take responsibility for examining their claims, pursuant to the Dublin III Regulation, requests which were acceded to. Each claimant was detained for a period of time pending his or her removal from the UK, and challenged their detention as unlawful. The High Court dismissed four of the challenges but upheld the fifth. The Court of Appeal found for all five claimants. The Home Secretary appealed to the Supreme Court. 

Lord Kitchin, with whom Lady Hale, Lord Reed, Lord Wilson and Lady Arden agreed, said there were two particular questions before the court. First, was the detention of each respondent lawful, given that article 28 of the Regulation permitted detention where there was a “significant risk of absconding”? “Risk of absconding” was 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. Secondly, if the detention was not lawful, were damages payable either under domestic law for false (or wrongful) imprisonment, or pursuant to the Factortame principle? 

A policy such as that embodied in chapter 55 of the EIG was published so that an individual affected by it knew the criteria by which the executive had chosen to exercise the power conferred on it by statute, and could make appropriate representations in relation to that exercise of power as affecting him or her. The executive had to follow its stated policy unless there were good grounds for not doing so. But chapter 55 did not establish objective criteria for the assessment of whether an applicant for international protection who was subject to a Dublin III transfer procedure might abscond. Its contents did not constitute a framework with certain predetermined limits. Further, it did not set out the limits of the flexibility of the relevant authorities in assessing the circumstances of each case in a manner which was binding and known in advance. Therefore, the Court of Appeal was right to hold that chapter 55 could not satisfy the requirements of articles 28(2) and 2(n) of the Regulation. Because chapter 55 did not set out the limits of the flexibility of the relevant authorities in assessing the circumstances of each case in a manner which was binding and known in advance, it lacked the necessary qualities of certainty and predictability and did not constitute a “law” for the purposes of those articles. 

Any claim by the respondents for damages under EU law had to be judged by the Francovich and Factortame principles. However, those principles did not constrain the respondents’ claims for damages for wrongful imprisonment. Applying R (Lumba) v Secretary of State for the Home Department (2011), it made no difference whether the source of the for certainty and objectivity requirement lay in EU or domestic legislation. The ingredients of the tort of wrongful imprisonment were undoubtedly present. The right under domestic law to claim damages for wrongful imprisonment was not dependent on the law being clear, nor on whether the illegality was the consequence of a failure to comply with EU legislation or had some other cause. The respondents were entitled to compensation under domestic law for any loss that the wrongful detention had caused them, and not only to nominal damages. The case would be sent to the county court for assessment of damages, if that could not be agreed.

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