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R(Hemmati & Other) v Secretary of State for the Home Department – Opening the Pandora Box of Immigration Detention.

R(Hemmati & Other) v Secretary of State for the Home Department  – Opening the Pandora Box of Immigration Detention.

 

 

 

 

 

 

 

 

 

 

 

 

 

Tommaso Poli, Immigration and Asylum Paralegal Executive at HS Legal Solicitors, explains the content, and implications for immigration detention, of R(Hemmati & Other) v Secretary of State for the Home Department published on the 4th of October 2018.

 

The Court of Appeal, with the majority judgement of Sir Terence Etherton MR and Lord Justice Peter Jackson, recently issued a cornerstone determination in R(Hemmati & Ors) v Secretary of State for the Home Department regarding the detention of asylum seekers under Dublin III Regulation, which might have further relevance in relation to the detention of any asylum seeker and irregular migrant.

 

The Court discussed the lawfulness of the detention of five asylum seekers (Mr Hemmati, Mr Khalili, Mr Abdulkadir, Mr Mohammed and SS), who were detained under the combined provision of paragraph 16(2) of Schedule 2 of the 1971 Immigration Act (paragraph 16(2)), Article 28(2) and Article 2(n) of Dublin III Regulation (Article 28(2)).

 

Paragraph 16(2) confers a discretion to detain persons liable to be removed from the UK pending a decision whether or not to give directions for removal, and pending removal in pursuance of such directions.

 

Article 28(2) provides that ‘when there is a significant risk of absconding, Member State may detain the person concerned in order to secure transfer procedures in accordance with this Regulation, on the basis of an individual assessment and only in so far as detention is proportional and other less coercive alternative measures cannot be applied’.

 

Significant risk of absconding is defined at Article 2(n) of Dublin III Regulation (Article 2(n)) as ‘the existence of reasons in an individual case, which are based on objective criteria defined by law, to believe that an applicant or a third-country national or a stateless person who is subject to a transfer procedure may abscond’.

 

With regard to the authentic interpretation of the combined provision of Article 28(2) and Article 2(n), the Court of Appeal referred to the European Court of Justice (ECJ) Al Chador case.

 

Al Chador

 

In this case, the ECJ firstly ruled that Article 2(n) of the Dublin III Regulation explicitly requires that objective criteria defining the existence of a risk of absconding be defined by the national law of each Member State (paragraph 27-28).

 

Then, determining whether the word ‘law’ must be understood as including settled case-law, the ECJ reaffirmed that in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it forms part

Judgment of 26 May 2016, Envirotec Denmark, paragraph 27

 

As regards the objective pursued by Article 2(n) of the Dublin III Regulation, read in conjunction with Article 28(2) thereof, the Court recalls that, by authorizing the detention of an applicant in order to secure transfer procedures pursuant to that regulation where there is a significant risk of absconding, those provisions provide for a limitation on the exercise of the fundamental right to liberty enshrined in Article 6 of the Charter of the Fundamental Rights of the European Union (the Charter).

 

In that regard, it is clear from Article 52(1) of the Charter that any limitation on the exercise of that right must be provided for by law and must respect the essence of that right and be subject to the principle of proportionality.

 

Furthermore, it is worth noting that in this ruling the ECJ explicitly aligns its interpretation to the European Court of Human Rights (ECtHR), reaffirming that any deprivation of liberty must be lawful not only in the sense that it must have a legal basis in national law, but also that lawfulness concerns the quality of the law and implies that a national law authorizing the deprivation of liberty must be sufficiently accessible, precise and foreseeable in its application in order to avoid risk of arbitrariness

Judgment of the European Court of Human Rights of 21 October 2013, Del Río Prada v Spain, paragraph 125

 

The ECJ then concluded by stating that taking account of the purpose of the provisions concerned, and in light of the high level of protection which follows from their context, only a provision of general application could meet the requirement of clarity, predictability, accessibility and, in particular, protection against arbitrariness (paragraph 40-42).

 

It follows that Article 2(n) and Article 28(2) of the Dublin III Regulation, read in conjunction, must be interpreted as requiring that the objective criteria underlying the reasons for believing that an applicant may abscond must be established in a binding provision of general application (paragraph 45). In the absence of such criteria, the detention is unlawful.

 

Hemmati

 

At the outset, Sir Terence Etherton MR and Lord Justice Peter Jackson emphasised that ‘Dublin III was intended to improve the protection afforded to applicants under the Dublin system’, in particular ‘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’ (paragraph 164).

 

In light of the above, and referring to the Hardial Singh principles and Chapter 55 of the Enforcement Instructions and Guidance (EIG), Sir Etherton MR and LJ Peter Jackson stated that:

 

‘A list of criteria, some of which are relevant to absconding and others of which are not or may not be relevant, do not satisfy the Al Chodor requirements for the criteria for assessment of the risk of absconding to be set out in a legally binding instrument and to be clear, predictable and accessible. They do not enable the applicant to know which criteria will be applied specifically to meet the requirements of Article 28 and 2(n). Critically, they are not a “framework of certain predetermined limits” as required by Al Chodor for deprivation of the fundamental right to liberty under Article 6 of the Charter’ (paragraph 174).

 

Thus, an asylum seeker’s detention under Article 28(2) on the basis of Hardial Singh Principles and EIG Ch. 55 criteria is a breach of Article 6 of the Charter and Article 5 of the European Convention on Human Rights (ECHR).

 

Interestingly, with regard to the direct effect of Article 28(2) on the UK legal system, Sir Etherton MR and LJ Peter Jackson highlighted that ‘although the CJEU (at paragraphs 36 and 41) described the effect of Article 28(2) as a limitation on the fundamental right to liberty, its direct effect in the UK operated as a limitation on the exercise of the statutory discretion to detain pursuant to paragraph 16(2) of Schedule 2 to the 1971 Act’.

 

In order to comply with Article 2(n) requirement, the UK Parliament approved ‘The Transfer for Determination of an Application for International protection (Detention)(Significant Risk of Absconding Criteria) Regulations 2017’ (Regulation 2017) which sets the criteria to be considered when determining risk of absconding.

 

In that regard, Lamber J in R (Omar) v SSHD highlighted that it was common ground between counsel for the claimants and counsel for the Secretary of State that the above-mentioned criteria in Regulation 2017 had to be ‘both mandatory and exhaustive’, otherwise the necessary protections of certainty, predictability and accessibility would not be conferred nor the protection against arbitrariness.

 

Ultimately, as regards damages for unlawful detention, Sir Etherton and LJ Peter Jackson stated that ‘there is no doubt that all the necessary ingredients for the common law cause of action for false imprisonment are satisfied’ (paragraph 190).

 

Expanding the relevance of Hemmati

 

Turning to Article 28(4) of Dublin III Regulation, it provides that the general rules on guarantees relating to procedural rights and detention conditions set out in the Reception Conditions Directive apply to asylum seekers detained under the Dublin rules.

 

As a consequence, reading Article 28(4) a fortiori it is reasonable to state that if Reception Directive guarantees apply to person detained under the Dublin III Regulation, in turn Dublin III Regulation guarantees should apply to person detained under Reception Directive (Article 8(3)), i.e. asylum seekers not subjected to Dublin III transfer.

 

Thus, the criteria enshrined in Regulation 2017 should bind decision-makers when exercising their discretion to detain under 1971 Act due to ‘risk of absconding’ in any case involving asylum seekers.

 

To conclude, acknowledging that the provisions providing limitations on asylum-seekers detention are inherently intertwined, it is reasonable to expand the legal rationale related to the necessity of a binding provision of general application defining the ‘risk of absconding’ under Dublin III Regulation to the equal necessity for ‘less coercive alternative measures’ to the detention of asylum seekers (see UNHCR, ‘Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention’).

 

Thus, a binding provision of general application defining and giving a list of ‘less coercive alternative measures’ should be provided in order to guarantee the lawfulness of detention, as explained in Del Rio Prada v Spain, and protect the right to liberty.

 

To Book an Initial Consultation with Tommaso give us a call on 01206500181 or use the online form.

Blue Power Group Sarl and others v Eni Norge AS and others

Practice – Summary judgment. The claimants’ application for summary judgment in a claim relating to the potential transportation of compressed natural gas failed, as it was premature to conclude that there would be no further relevant evidence to come. The Chancery Division further struck out parts of the pleading that appeared to claim loss of profits for breach of best endeavours. The claimants would be required to provide a response to the defendants’ request for further information.

 

Background

The claimant associated companies conducted business of research, development and engineering of technologies in the energy sector. The defendant companies were an Italian oil multinational and two of its subsidiaries. The proceedings arose out of a project relating to the potential transportation of compressed natural gas (CNG) from an oil and gas field in the Barents Sea called Goliat. The first defendant was the operator and majority licence-holder for Goliat: the minority licence interest was held by a Norwegian oil company (Statoil).

The defendants needed to find and implement a solution for dealing with and/or exploiting the gas released at the Goliat offshore floating platform. To that end, from early 2010, certain of the parties entered into agreements, including an exclusive framework agreement (the EFA) in March 2010.

The defendants and Statoil implemented a solution involving the reinjection of gas at the Goliat offshore platform. The CNG export project was terminated because Statoil refused to give its consent to it. The claimants commenced proceedings, including a claim against the first defendant for breaches of obligations in the EFA to use its best endeavours to obtain Statoil’s consent to the CNG project and/or to promote the CNG option to Statoil, together with breaches of related obligations to keep the claimants informed about various matters. The first defendant (ENI) contended that, first, it should be granted summary judgment, as the claimants had no real prospect of success because there had been no real chance that Statoil would have consented to the continuation of the CNG project in any event. Second, it contended that the claimants’ only possible claim was for the loss of a chance of additional profits, so the alternative claim for loss of profits should be struck out.

Issues and decisions

(1) Whether there was a realistic prospect of the claimants being able to establish at trial that Statoil could have been persuaded to consent to the continuation of the CNG project if ENI had taken as yet unidentified steps.

On the evidence, it was not possible to say that there was no realistic prospect of the claimants being able to establish at trial that Statoil could have been persuaded to consent to the continuation of the CNG project if ENI had taken as yet unidentified steps. The principal difficulty was that there was no evidence from the actual decision-makers at Statoil (see [54], [55] of the judgment).

It was conceivable that disclosure would shed further light on Statoil’s decision-making as it had been revealed to the defendants (see [57] of the judgment).

In short, it was premature to conclude, at the present stage, that there would be no further evidence, either documentary or oral, that would have a bearing on Statoil’s decision-making process (see [59] of the judgment).

Three Rivers District Council v Bank of England [2000] 3 All ER 1 considered; Equitable Life v Ernst & Young [2003] PNLR 16 (CA) considered; Shah v HSBC Private Bank (UK) Ltd [2010] 3 All ER 477 considered; Tesco Stores Ltd and others v Mastercard Incorporated and others [2015] All ER (D) 195 (Apr) considered; Wellesley Partners Llp v Withers Llp [2015] All ER (D) 146 (Nov) considered.

(2) Whether the claim should be struck out in relation to the claim for loss of profits.

It was common ground that the claimants could not claim loss of profits for the breach of the best endeavours obligation. It was important that the pleading accurately reflected the claims being pursued. Accordingly, the parts of the pleading which appeared to claim loss of profits for best endeavours would be struck out. That could be addressed by a minor amendment. Consequently, the application for summary judgment in respect of the claim relating to the breach of the obligation to use best endeavours would be struck out, but would be allowed in relation to the pleading point (see [71], [72] of the judgment).

(3) Whether the claimants should provide a response to a request for further information, as contended by the defendants.

The defendants were entitled to know what facts and matters, already within the claimants’ knowledge and dependent on disclosure, the claimants relied upon. Accordingly, the claimants would be directed to provide a response to the request for further information by mid-September 2018 (see [81], [82] of the judgment).

Report highlights challenges facing the UK when promoting human rights abroad

The House of Commons Foreign Affairs Committee has published a report examining the hurdles and opportunities presented to the Foreign and Commonwealth Office (FCO) regarding human rights, and that the UK’s traditional approach to promoting human rights overseas is changing due to conflicting priorities between human rights and other policies, such as trade. The report calls upon the government to give more support to UK nationals in order to gain key positions in the UN as there has been a decline in the UK representation on human rights treaty bodies and recent UN election defeats.

The report states that, concerning the UK’s human rights agenda and its conflicting policy objectives, there is a perception that trade objectives are given priority over human rights, but human rights is in the UK’s long-term commercial and moral interest. The report urges the UK government to include human rights clauses into future trade agreements.

Source: Report: Human rights clauses should be included in future trade agreements

Good data protection key for consumers when choosing businesses

The Confederation of British Industry (CBI) has found that 84% of consumers feel that a business with a good data security history and track record of protecting personal information is the key characteristic they look for when deciding where to take their custom. The CBI states that a commitment to data privacy should be a fundamental part of a business’s licence to operate in the modern economy.

The CBI argues that the issues of trust, privacy and innovation are increasingly in the spotlight as the pace of digital change accelerates and urges firms to do more in their engagement with consumers over personal data.

Key findings in the survey include:

• people identified greater transparency of how data is used (50%) and making it easier to delete data shared (48%) as key actions for firms to take

• over half of consumers (54%) said they are not aware of what rights they have when sharing data

• 49% of respondents said they did not believe businesses have their best interests at heart when using their personal data

Matthew Fell, CBI UK Chief Policy Director, told the annual CBI Cyber Security conference:

‘Responsible data use is the number one reason a customer will stay loyal to your business. And irresponsible data use is the main motive for looking elsewhere. It’s absolutely vital. And it means having a good cyber security strategy will make your business more competitive.’

Source: Press release: Almost 9 out of 10 people say businesses that protect their data will win their custom

Government issues guidance around wall cladding assessments

The Ministry of Housing, Communities & Local Government (MHCLG) has published a circular letter informing control bodies of issues regarding assessments of external wall cladding systems. This follows concerns in Dame Judith Hackitt’s report into building regulations and fire safety that assessments in lieu of tests have been used inappropriately to support proposals for cladding systems.

Currently, Section 12 of Volume 2 of approved document B (Fire safety—buildings other than dwelling houses) sets out two ways for duty holders to demonstrate compliance with certain fire safety requirements in relation to buildings with a storey 18 metres or more above ground level. The two ways are:

• for any insulation product, filler materials (not including gaskets, sealants and similar) used in the external wall construction to be of limited combustibility

• for the external wall to meet the performance criteria given in the Building Research Establishment report ‘Fire performance of external thermal insulation for walls of multi storey buildings’ (BR 135) for cladding systems using full scale test data from BS 8414 -1: 2002 or BS 8414-2: 2005

Pending the outcome of current consultations on changes to the assessments in light of Dame Hackitt’s review, MHCLG said that building control bodies should:

• only accept evidence of either of these two ways to demonstrate compliance

• look for clear evidence of the classification of materials used, to meet the definitions in Table A7 of Appendix A, or clear evidence of the results of tests carried out in accordance with BS 8414

• not accept proposals which lack such evidence

Source: Guidance: Assessments of external wall cladding systems

Rest of GB overtakes London for house-building

The Construction Products Association (CPA) has announced that London has been overtaken in house-building by the rest of Great Britain (GB). The CPA found that residential contracts awarded in London were 34% lower in 2017 than the value a year earlier, while most regions in the rest of the country experienced growth.
The information comes from the regional construction hotspots in GB 2018 report, made by Barbour ABI and the CPA. The report finds, among other things, that:• across all GB regions, London came last for residential contracts growth, falling 33.9% from 2016 to 2017

• for residential contracts, the only two ‘hotspots’ of construction activity in London are focused on Haringey & Islington and Hounslow & Richmond upon Thames

• the commercial sector in London also experienced significant falls, with commercial contracts falling by 38.5% from 2017 to 2017, totalling £2.1bn

Source: Press release: London overtaken by rest of Great Britain in housebuilding growth

R (on the application of Taher) v Secretary of State for the Home Department

Passport – British Overseas citizen. The claimant had not been able to produce sufficient documentary evidence to establish his claim that he was a person of Somali heritage who was born in Aden prior to 14 August 1968 who had not acquired South Yemeni nationality on or before that date. Accordingly, the Administrative Court dismissed his application for judicial review of the defendant Secretary of State’s decision refusing his application for a passport as a British Overseas citizen.

Background

The claimant applied for a passport as a British Overseas citizen (BOC) on the basis that he was a person of Somali heritage, born in the former Crown Colony of Aden, prior to 14 August 1968, who did not acquire South Yemeni nationality on or before that date. The defendant Secretary of State refused the application and the claimant applied to quash that decision.

Application dismissed.

Issues and decisions

Whether the claimant was a BOC.

The Secretary of State rightly submitted that the claimant’s credibility and honesty was called into question by his conduct, namely, inserting a false date into his passport and relying on a passport with false particulars when travelling. That deception had continued for many years and had only been corrected when the claimant had believed it would be beneficial to do so, in order to obtain a BOC passport (see [78] of the judgment).

Even taking the cultural differences into account, the claimant’s account as to how he had come to change his birth date from 1947 to 1949 was implausible and inconsistent. The court was not able to satisfy itself that his Republic of Yemen birth certificate was authentic and that it accurately reflected the records in the birth register from 1947. The claimant had neither an original Colony of Aden birth certificate, nor a scanned copy. He claimed to have lost the original birth certificate many years ago. That might be so, but it was suspicious that he had never tried to replace it until he had wanted to apply for a BOC passport (see [82], [83] of the judgment).

The claimant’s Somali passports were evidence of his identity, his place of birth in Aden, his Somali nationality and of his parentage. However, Somali passports were not necessarily accurate or reliable. Further, the claimant had not been able to produce official records of his parents’ identity, place and date of birth, Somali heritage or residence in Aden (see [84], [85] of the judgment).

The claimant was not a credible witness and his oral evidence could not be relied upon unless it was supported by documentary evidence. He had not been able to produce sufficient documentary evidence to establish his claim that he was a person of Somali heritage who was born in Aden prior to 14 August 1968 who had not acquired South Yemeni nationality on or before that date (see [97] of the judgment).

MA (Somalia) v Secretary of State for the Home Department [2011] 2 All ER 65 applied.

MAC makes recommendations to improve impact of international students in the UK

The Migration Advisory Committee (MAC) has released a report following a call for evidence from 4 October 2017 to 26 January 2018 on the impact of international students in the UK. The report, which looks at four main impact areas of international students—including economic and fiscal impacts, impacts on domestic students, impacts on the wider community and impacts after studies are completed—makes recommendations as well as observations on these impacted areas. The London Chamber of Commerce and Industry (LCCI) and Chris Magrath, senior partner at Magrath Sheldrick LLP, refer to the MAC’s recommendation regarding making it easier for students to secure work in the UK post-study, agreeing that ‘now more than ever [with the upcoming Brexit] the UK should be striving to attract the brightest talent from around the world’, with its immigration policy reflecting this.

The report considers all levels of education and the whole of the UK. It addresses among other things:

• the UK’s policy towards international students

• trends in the number of students coming to the UK

• where and what students study

The report highlights that 300,000 study visas are issued each year, covering short-term study and those on a Tier 4 visa, with an estimated 190,000 people coming from abroad to study in the UK who planned to be here for at least 12 months.

Recommendations

Following its call for evidence[PV(1]  on the impact of international students in the UK, the report makes various recommendations for the government. These include among others:

• that there continues to be no cap placed on the number of Tier 4 visas issued to non-EEA international students

• that international students continue to be included in the International Passenger Survey (IPS) immigration statistics

• that no separate post-study work visa should be introduced for international students (subject to further evaluation by the MAC or another body of what students do in the post-study period and when they move into other immigration work categories)—this will be a blow for Universities UK following the launch earlier this month of its proposal for a two-year post-study work visa for international graduates

• that there is no regional approach taken to matters relating to international students—this is on the basis that the complications introduced by this are not justified by the size of regional variations, for example in relation to entry level full-time professional employment salaries

• that no changes should be made to the work rights of international students as these are broadly similar to competitor countries—although UK rules are stricter for those studying at further education colleges

• the government should ensure switching to Tier 2 is possible once a job offer has been made, even if this is many months before the proposed start date

• graduates of higher education institutions should be able to access the relaxed criteria currently applicable for Tier 4 to Tier 2 switching (exclusion from the Tier 2 cap as well as exemptions from resident labour market testing and the Immigration Skills Charge) for two years after course completion irrespective of whether the student leaves the UK during that period—this change should be evaluated post-implementation to check the quality of the employment such students move into

Prioritising the growth of international student numbers

The MAC encouraged the government and education sector to work together to grow international student numbers, and to present these students with a positive and welcoming image of the UK.

Responding to calls to remove international students from the IPS statistics that the government currently uses in its aim to reduce net migration, the MAC observed that doing so may compromise the quality of the statistics that are used for population estimates. It acknowledged that many in the education sector had argued in the call for evidence that one of the biggest problems with negative messaging is the inclusion of international students within the government’s net migration target and suggested that this could be addressed by the government deciding to use other data sources to set net migration targets, or to drop such targets altogether.

Harnessing international student talent

The LCCI agree with the MAC’s recommendation to ensure easier access for students to secure work in the UK after finishing their studies. It notes that during a ‘time when three quarters of firms are struggling to fill job vacancies, it makes sense to harness the talent of international students’.

Magrath also agrees that and inflow of overseas students to the UK is necessary in bringing significant benefits to the country. He notes that with the ‘minor tweaks’ suggested by the MAC to UK immigration rules, the UK could see a greater number of students encouraged to come to the UK.

UK should look to attract the ‘brightest talent from around the world’

With Brexit fast approaching the LCCI believes that: ‘Now more than ever, the UK should be striving to attract the brightest talent from around the world, and our [the UK’s] future immigration policy should reflect that instead of a fixation with targets.’

It believes the government should ‘restore a post-study work visa that allows British universities and companies to benefit from the energy of some of the people they have trained’.

Source: Report: Impact of international students in the UK

Private rented property tenants are being failed by government policy

Millions of tenants in private housing have been failed by the government due to poor policy-making and unclear strategy, the University of York has found. A major review into the private rented sector found that welfare reforms have created a ‘slum tenure’ at the bottom end of the market.

The university’s review looked into who lives in private rented housing, how their needs are being met and the impact of government policy changes over the last decade. Among other things, it finds:

• current sector regulation is ‘confused and contradictory’, with opportunities for linkage and simplification being missed

• poor conditions are a problem at both ends of the market, with one in three properties let at the bottom 20% of the market being non-decent

• policy interventions are becoming more and more focused on helping higher- and middle-income renters priced out of ownership, with almost no help for those on low incomes

The review concludes that no government has clearly set out the function of renting within the housing market, and as such intervention has been poorly-targeted and ineffective.

Source: Press release: Review reveals millions of private housing tenants are being failed

Guidance for caseworkers considering EU Settlement Scheme applications published

The Home Office has published guidance instructing caseworkers how to consider applications under the EU Settlement Scheme during the private beta pilot phase. The EU Settlement Scheme assists EU citizens resident in the UK and their family members with applications for UK immigration status, which requires that they remain in the UK after the planned implementation period on 31 December 2020 ends.

Applicants in the North West, which covers some universities and NHS Trusts, are eligible for the private pilot.

Source: Guidance: EU Settlement Scheme caseworker guidance