EU law curbs the right to detain asylum seekers

The Court of Appeal handed down judgment in an important case – Hemmati & Ors v Secretary of State for the Home Department [2018] EWCA Civ 2122 – with significant implications for the law relating to false imprisonment.

The claim was brought by five asylum seekers who challenged the lawfulness of their detention pending their transfer to another EU Member State through which they had travelled in coming to the UK.  

By way of a majority judgment the Court of Appeal held that, whilst the detention of the asylum seekers was lawful under domestic law, it was unlawful under EU law. The Court of Appeal also rejected arguments that only nominal damages should be paid for the breach of EU law given that the technical nature of the breach of EU law. The result means that a very large number of persons present in the UK illegally who have been detained pending their removal from the UK have grounds for claiming damages with the bill to the public purse expected to be millions of pounds. The Secretary of State for the Home Department is seeking permission to appeal against this judgment to the Supreme Court.

The five asylum seekers, each of whom had entered the UK illegally, had been detained pending their possible removal to other EU Member States pursuant to Regulation 604/83 (Dublin III), and claimed damages for false imprisonment under EU law. Before the High Court, four of the asylum seekers had their claims rejected, and one succeeded.

The first issue before the Court of Appeal was whether the principles governing detention under domestic law (namely those set out in R. v Governor of Durham Prison Ex p. Singh [1984] 1 W.L.R. 704 and those contained in the Secretary of State’s policy governing detention) satisfied the requirements of clarity and certainty provided for in EU law and Articles 2 and 28 of Dublin III in particular.

The second issue was whether, if EU law was breached, applying the principle in Brasserie du Pecheur SA v Germany (C-46/93) EU:C:1996:79 (Factortame) the breach was “sufficiently serious” so as to sound in damages. The majority of the Court of Appeal held that the domestic principles governing detention failed to meet the requirements of clarity and certainty, and that this breach of EU law was sufficiently serious so as to require payment of damages.

Alan Payne acted for the Secretary of State. He specialises in public law.