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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.

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

Passport – British Overseas citizen. The claimant was entitled to a declaration that she was a British Overseas citizen (BOC). The Administrative Court, in allowing her application for judicial review of the defendant Secretary of State’s decision to refuse her a BOC passport, further held that, although the claimant had knowingly used a passport with a false date of birth, that did not, in law, disqualify her from the status of BOC to which she was otherwise entitled.

Background

The claimant applied for a passport as a British Overseas citizen (BOC) on the basis that she 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 allowed.

Issues and decisions

Whether the claimant was a BOC.

In the light of all the evidence adduced, there was a person named Qamar Mohamed Suleiman who had been born in Aden on 30 September 1966. Qamar Mohamed Suleiman’s parents had been of Somali heritage and nationality. Neither the parents nor their children had become nationals of the Republic of South Yemen on or before 14 August 1968. The Secretary of State had already granted BOC passports to three of the other children, thus accepting that they met the requisite conditions to be BOCs. There was no discernible justifiable basis upon which to distinguish Qamar Mohamed Suleiman from her brothers, when considering whether she was a BOC (see [68] of the judgment).

There was no evidence to support any suggestion that the claimant was impersonating Qamar Mohamed Suleiman, in an attempt to obtain a BOC passport. Having considered her written and oral evidence, she was Qamar Mohamed Suleiman (see [69] of the judgment).

Although the claimant had knowingly used a passport with a false date of birth, which might be an offence in the countries in which she resided, or to which she had travelled, that did not, in law, disqualify her from the status of BOC to which she was otherwise entitled (see [74] of the judgment).

Therefore, the claimant was entitled to a declaration that she was a BOC (see [75] of the judgment).

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

Information on Immigration and Asylum, Please give our Immigration team a call on 01206500181 or email us on info@hs-legal.co.uk

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

Immigration – Trafficking people for exploitation. The competent authority’s decision, that there had been sufficient information to make a negative conclusive grounds decision, and the decision itself had been irrational and unfair, and the making of the conclusive grounds decision was additionally made in breach of the defendant Secretary of State’s guidance and constituted a public law error. The Administrative Court further held that the whole period of the claimant’s detention had been unlawful and he was entitled to compensatory damages for the period lasting 70 days.

Background

On 14 March 2016, the claimant Vietnamese national was encountered by police officers. One of the officers completed a referral form in respect of the claimant and submitted it to the National Referral Mechanism (the NRM). The claimant said that, after his release from custody, he was picked up from a street by men and re-trafficked.

On 20 March, the defendant Secretary of State concluded that there were reasonable grounds to believe that the claimant had been a victim of modern slavery (human trafficking). The decision letter was sent to the claimant at the address held by the police. On or around 21 April, a further letter was sent to the claimant inviting him to an interview. That letter was returned to the Secretary of State resulting in a note being placed on her records on 27 April that the claimant was not at the address to which the letter had been sent. On 28 September, following an email from the officer-in-the-case, the competent authority decided that there was an adequate basis for making a conclusive grounds decision, notwithstanding the absence of further contact with the claimant, and that decision was negative.

Information on Immigration and Asylum, Please give our Immigration team a call on 01206500181 or email us on info@hs-legal.co.uk

Continue reading R (on the application of CP (Vietnam)) v Secretary of State for the Home Department

Stamp Duty Land Tax in Commercial Property Transactions

Emily Egan – Trainee Solicitor

Stamp Duty Land Tax in commercial lease transactions is often something that is overlooked by many prospective Tenants when budgeting for being granted or assigned a commercial lease. It is important for new Tenants to be aware of the full cost of a lease including any liability they have in relation to Stamp Duty.

Stamp Duty Land Tax (SDLT) will be assessed on any premium paid for the lease and also on the rent. The SDLT payable on the premium will be assessed in the same way as for residential property.

When looking at the rental element of the lease SDLT will be payable at a flat rate of 1% on the ‘net present value’ of the lease and this is something that your Solicitor will calculate and inform you of. Your solicitor should submit and pay your SDLT return within 30 days of completion of the transaction.It is always helpful if your solicitor provides you with an estimate of the SDLT liability at the outset of the transaction to avoid any surprises  as you near the end. For more information on commercial property transactions give our                                                                                         commercial property team a call on 01206500181.

 

Good result on retained residence rights for non-EU spouses who give up work temporarily

The Upper Tribunal has ruled that the term “worker” in the regulations concerning the rights of residence retained by non-EEA nationals if they divorce their EEA spouse includes jobseekers. This means that when someone who has given up work during marriage gets divorced from an EU citizen they will still be able to lawfully live in the UK while they look for a job.

In Gauswami (retained right of residence: jobseekers) India [2018] UKUT 275 (IAC), the Secretary of State for the Home Department argued that it was acceptable under EU law for the EEA Regulations to exclude jobseekers from retaining a right of residence after divorce. The Upper Tribunal rejected this attempt to utilise the distinction between ‘worker’ and ‘jobseeker’ in order to water down the meaning of Article 45 of the Treaty on the Functioning of the European Union, which guarantees free movement rights. Importantly, the Upper Tribunal held that this conclusion applied to both the 2006 and 2016 EEA Regulations and applications for residence made by family members upon the death of their EEA national relative. Continue reading Good result on retained residence rights for non-EU spouses who give up work temporarily

EU citizens’ rights ignored in first batch of government “no deal” plans

The UK government has published a series of papers on what a “no deal Brexit” would look like but the crucial issue of EU citizens’ rights is not covered in the first batch.

Earlier today the Brexit Secretary, Dominic Raab, launched the “first batch in a series” of technical notices advising on what happens if there is no UK-EU agreement on the terms of exit in time for Brexit day, 29 March 2019. Media reports suggest that around 80 notices are eventually expected; 24 were issued today, along with an overview. There is room in the first tranche for “Labelling tobacco products and e-cigarettes“, but nothing on the legal position of 3.8 million EU citizens and their families in the event of no deal.

Ministers have made reassuring noises about citizens’ rights ever since Brexit, including this week. But to solemnly pledge that millions of people would not be removed en masse from the UK — and to think that this is taking the “moral high ground” — misses the point. Nobody thinks that deporting 5% of the UK population is desirable or remotely feasible. The issue is the terms and conditions on which EU residents will be able to stay. That is what a technical note on the subject ought to cover. The Department for Existing the European Union was unable to confirm that there will even be one.

The UK government made various concessions in the course of negotiating the draft Withdrawal Agreement with the European Commission. For example, if that deal is finalised EU citizens would continue to enjoy enhanced rights to bring non-EU loved ones to join them in the UK, and a transition period would lock in free movement until the end of 2020. The UK government initially resisted both of these things.   Continue reading EU citizens’ rights ignored in first batch of government “no deal” plans

High Court rejects complaint about failure to treat victim of trafficking

In R (H) v Secretary of State for the Home Department [2018] EWHC 2191 (Admin) the High Court has rejected two complaints about how the Home Office recognises and cares for trafficking victims in detention. First, the claimant argued that Rule 34 and Rule 35 of the Detention Centre Rules 2001, which require a medical assessment within 24 hours to identify whether a detainee has physical or mental health vulnerabilities or has suffered from torture, also include a requirement to identify and provide extra support to victims of trafficking. Secondly, the claimant submitted that the failures in this case were an example of systemic failure by the Home Office to comply with its duties towards trafficking victims.

It is important to note that before the substantive hearing the defendant withdrew his decision to certify the claimant’s asylum claim and accepted that he had been unlawfully detained for 12 months. So H had already achieved most of the remedies sought in this judicial review.

Continue reading High Court rejects complaint about failure to treat victim of trafficking