R (on the application of Hemmati and others) (AP) (Respondents) v Secretary of State for the Home Department (Appellant)

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Case summary

Case ID

UKSC/2018/0197

Parties

Appellant(s)

Secretary of State for the Home Department

Respondent(s)

Hadi Hemmati

(1) Fawad Khalili, (2) SS

(1) Jamal Abdulkhadir, (2) Jwytar Mohammed

Issue

Whether the Secretary of State’s published policy in Chapter 55 of the Enforcement Instructions and Guidance satisfied the requirements of Article 2(n) and Article 28 of the Dublin III Regulation. If not, whether damages are payable in respect of the detention of the Respondents either for the tort of false imprisonment or pursuant to EU law under the principle established by the Court of Justice of the European Union in the Factortame case.

Facts

This case concerns five individual immigrants who were placed in detention for various periods pending possible removal to other EU Member States pursuant to the asylum arrangements under the Dublin III Regulation. In particular, the principal issues in the appeal concern the meaning and effect of Article 2(n) and Article 28 of the Dublin III Regulation. At the relevant time, the Secretary of State had published a policy in relation to detention pending removal in the Enforcement Instructions and Guidance. The judicial review claims were first considered by three different judges. The claims of HH and FK were dismissed by Garnham J. The claims of JA and JM were dismissed by Irwin J. The claim of SS was allowed by Deputy High Court Judge Howell. The appeals by HH, FK, JA and JM were joined with the Secretary of State’s appeal in SS to be heard together by the Court of Appeal. The Court of Appeal, by a majority, found that the Respondents were entitled to damages for the tort of false imprisonment as a result of the failure of the Secretary of State to implement correctly the requirements of Article 2(n) and Article 28 of the Dublin III Regulation. Sales LJ dissented. The Secretary of State appealed to the Supreme Court.