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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Khaled, R (on the application of) v Secretary of State for the Home Department (No 2) [2016] EWHC 1394 (Admin) (15 June 2016) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2016/1394.html Cite as: [2016] EWHC 1394 (Admin), [2016] WLR 424, [2016] 3 CMLR 31, [2016] WLR(D) 328, [2016] 1 WLR 4243

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/06/2016

Mr Justice Garnham:

Introduction

1. The Claimants are nationals of Afghanistan, Iraq or Iran. They have each made asylum claims in the UK. In each case, the Defendant, the Secretary of State, discovered that they had earlier claimed asylum in Bulgaria. The Defendant refused to decide their claims substantively and Bulgaria either accepted, or was deemed to have accepted, responsibility for the Claimants under Council Regulation (EC) No 604/2013 of 26 June 2013 ("Dublin III").
2. On 18 April 2016, I handed down judgment in a case I entitled "Khaled v SSHD No 1". That dealt with the issues relating to the safety of returning the five Claimants in these cases to Bulgaria. I indicated in that judgment that I would hand down a separate judgment dealing with the claims of four of them that they had been unlawfully detained pending removal. This is that judgment. I have entitled it "Khaled v SSHD No 2".
3. Claimants SK, HH, FK and HK allege that they were unlawfully detained at different times between February and August 2015. It is said that HK was unlawfully detained between 18 May and 30 June 2015; HH between 8 June and 18 July 2015; SK between 20 February and 25 March 2015 and between 21 July and 11 August 2015; and FK between 6 January and 9 March 2015.

The Facts

4. The background factual history of each Claimant is set out in Khaled v SSHD No 1 and it is necessary to repeat only part of that background here. I summarise below the facts relevant to the unlawful detention claims.

HK

5. HK is a national of Iraq. He alleges that he was an Iraqi national of Kurdish ethnicity and that he fears persecution at the hands of ISIS. His journey from Iraq took him through Bulgaria where he was stopped and detained. He then came to the UK.
6. On 20 January 2015, he was apprehended by the police in Barking. He admitted entering the UK illegally after having paid £4,000 to come to the UK. Either that day, or the following, he claimed asylum. He was interviewed, fingerprinted and was served with illegal entry papers.
7. In the authorisation of detention in January 2015, the Defendant suggested that HK was "likely to abscond if given temporary admission or release". Two reasons were given in support of this: that he did "not have enough close ties (e.g. family or friends) to make it likely that [he would] stay in one place"; and that he had "not produced satisfactory evidence of [his] identity, nationality or lawful basis to be in the UK". The Claimant alleges that by 4 February 2015, at the latest, the Defendant was aware that HK could live with his cousin and cousin's wife in the UK, the latter having contacted the Defendant directly.
8. On 5 February 2015, HK was released on temporary admission due to limited detention capacity. On the same day, a Rule 35 report was received noting his allegations of torture (in Bulgaria). The report indicates assent to the proposition "I am concerned that this individual might have been the victim of torture" and recounts the evidence given by HK. On 6 February 2015, a formal request was made to Bulgaria to take responsibility for his case. HK was released from detention.
9. On 11 March 2015, a response was made to the Rule 35 report. On 7 April 2015, Bulgaria accepted responsibility for HK's claim in default of response. On 14 April 2015, HK's claim was certified on safe third country grounds. On 18 May 2015, HK was detained with a view to effecting removal on 8 June 2015. A four day detention review asserts there was a "high risk of absconding" on the basis that HK had "stated that he does not want to return to Bulgaria".
10. On 29 May 2015, HK made a further ECHR claim, which was refused on 11 June 2015 with an out of country appeal pursuant to certification. On 19 June 2015, these proceedings were issued and removal directions setting removal for 22 June 2015 were cancelled. HK was released on conditions on 30 June 2015.

HH

11. HH is a national of Iran. He travelled from Iraq, via Turkey and Bulgaria. He admits that he entered the UK illegally, circumventing immigration controls. HH attended Lewisham police station on 11 February 2015 and was arrested as an illegal entrant. He was interviewed, fingerprinted, served with illegal entry papers and detained. On 14 February 2015, HH was released. On 18 February 2015, a formal request was made to Bulgaria to take responsibility for HH's claim. On 17 April 2015, Bulgaria formally accepted responsibility for HH's asylum claim. On 27 April 2015, HH's claim was refused on safe third country grounds.
12. On 8 June 2015, HH was detained to effect removal on the basis that his removal was "imminent" and he had not provided satisfactory evidence of his identity, nationality or lawful basis to be in the UK. The Defendant did not tick the boxes suggesting that HH was "likely to abscond if given temporary admission or release" nor that he had "previously absconded".
13. On 17 June 2015, a Rule 35 report was received recording HH's allegations that he had been tortured in Iran and ill-treated by Bulgarian police officers. The doctor ticked the box indicating that he had "concerns that this detainee may have been the victim of torture". A decision was made to maintain detention. On 17 June 2015, removal directions were set for 7 July 2015. On 19 June 2015, a second Rule 35 report was made alleging self-harm in Iran and referring to scarring said to be a result of that self-harm.
14. On 3 July 2015, HH made an ECHR claim. On 6 July 2015, the ECHR claim was refused with an out of country appeal pursuant to certification. A claim for judicial review was lodged on 6 July 2015, challenging the decision to certify HH's asylum claim on third country grounds, to remove him to Bulgaria on 7 July 2015 and to detain him. On 7 July 2015, the claim form was provided to the Defendant, who cancelled the scheduled removal for that day. On 8 July 2015, HH applied for temporary admission inter alia relying upon a medico-legal report produced by Medical Justice.
15. On 10 July 2015, these proceedings were issued. On 13 July 2015, the responsible clinicians were asked to advise whether any medical conditions of HH could be managed satisfactorily in detention (referring to the MJ report). On 14 July 2015, the responsible clinicians confirmed that HH was fit to be detained and fit to fly. On either 17 or 18 July 2015, HH was released.

SK

16. SK is a national of Afghanistan. He travelled to the UK via Bulgaria, where he was fingerprinted on 10 July 2014. He claims to have entered the UK illegally on 18 November 2014, circumventing UK immigration controls; there is no official record of date of entry. He made an in-country application for asylum in Croydon on 19 December 2014. He reported to Colindale Police Station on 2 January 2015. On 6 January 2015, he was interviewed, fingerprinted, served with illegal entry papers and detained.
17. On 7 January 2015, SK made claims of torture (in Afghanistan). A Rule 35 report was completed by Dr Nakouzi which recorded SK's account of having been abducted, blindfolded, and detained, during which time he was regularly beaten until a ransom was paid for him. It was said he was left with anxiety attacks and Post Traumatic Stress Disorder symptoms. In the light of SK's account Dr Nakouzi stated that his mental health and general presentation gave him cause for concern and that he would benefit from a mental health assessment.
18. On 8 January 2015, a formal request was made for Bulgaria to take responsibility for considering SK's asylum claim. On 9 January 2015, a decision was made to release SK in the light of his allegations of torture and he was granted temporary release with reporting conditions on 13 January 2015. In the absence of a response from the Bulgarian authorities, the request was resent on 29 January 2015. The Bulgarian authorities accepted responsibility for SK's claim on 12 February 2015.
19. On 20 February 2015, SK was detained and on 27 February 2015, his asylum claim was formally refused on safe third country grounds. The form recording the reasons for his detention shows the boxes crossed as those indicating absconding risks, imminence of removal, failing to provide satisfactory evidence of identity, nationality or lawful basis of stay, and previous failure to leave the country when requested to do so.
20. On 5 March 2015, SK's ECHR claim was refused with an out of country appeal pursuant to certification. On 13 March 2015, removal directions were set. At the same time a notice that his asylum claim was refused was served on him, to take effect on 23 March 2015.
21. On 20 March 2015, the Defendant maintained her decision to proceed with return to Bulgaria. SK's application for judicial review was lodged on 20 March 2015. On 22 March 2015, SK's removal directions were cancelled in the light of the present proceedings, pursuant to the Defendant's policy to defer removal directions where an initial judicial review application is lodged. SK was subsequently released from detention on 25 March 2015.
22. On 13 June 2015, permission for judicial review was refused; and it was directed that renewal should be no bar to removal. SK renewed his application to an oral hearing. On 3 July 2015, removal directions were reset for 30 July 2015. He was subsequently re-detained on 22 July 2015. On 27 July 2015 further representations were made on his behalf to defer removal.
23. On 29 July 2015, the Defendant again maintained her decision. On 29 July 2015, Wilkie J ordered that the Defendant's decision to remove SK to Bulgaria the next day be stayed. The Defendant's records show that she immediately deferred removal directions pursuant to that Order. SK was released 13 days later, on 11 August 2015. Permission to seek judicial review was refused on the papers on 13 June 2015, but granted at an oral hearing on 8 October 2015.

FK

24. FK is a national of Afghanistan. He claims to have a well-founded fear of persecution if returned to Afghanistan. He says he left Afghanistan in 2014 and arrived in Bulgaria in June or July 2014.
25. FK says that he entered the UK illegally, circumventing UK immigration controls, on 18 November 2014. There is no official record of entry. He claimed asylum on 20 November 2014. He was initially released on temporary admission and told to attend Colindale Police station on 2 January 2015, then the Defendant's offices on 6 January 2015 for a screening interview. He made an in-country claim for asylum on 6 January 2015. FK was interviewed, finger printed, served with illegal entry papers and detained on the basis that his "removal from the United Kingdom [was] imminent".
26. On form IS.91R the Defendant also claimed that FK had "used or attempted to use deception in a way that [led her] to consider that [he] may continue to deceive [the Defendant]". The box on the IS.91 form which states that the recipient would be "likely to abscond if given temporary admission or release" was not ticked (nor were the boxes referring to previous non-compliance, or previous absconding or escape).
27. On 26 January 2015, FK submitted representations seeking temporary admission and challenging the decision to make a request to the Bulgarian authorities. FK's asylum claim was certified on safe third country grounds on 28 January 2015. On 10 February 2015, the Defendant decided to remove FK to Bulgaria; and to set directions for his removal on 23 February 2015. The Dublin claim was formally accepted by Bulgaria on 12 February 2015.
28. The Defendant served a fresh notice IS.91R giving him the reasons for his detention; it was said his removal is "imminent". The box referring to a risk of absconding was not ticked. An internal detention review refers to FK "remain[ing] an absconder risk".
29. ECHR representations making Article 3 allegations against Bulgaria were made on 5 February 2015 and refused by a decision dated 16 February 2015 with an out of country appeal pursuant to certification. These proceedings were lodged on 20 February 2015 to prevent the removal scheduled for 23 February 2015. On issue of proceedings, the removal directions were cancelled.
30. On 3 March 2015, FK sought bail from the First-Tier Tribunal. The Defendant asserted that FK "is at high risk of absconding"; the reason given is that "subject has already shown disregard for UK immigration policy", which is said to make it "reasonable to conclude" that he is a high risk of absconding. The Defendant's "action plan" is said to be to "complete JR and expedite"; there is a note to the effect that "detention should be reviewed in the event that we are unable to expedite the JR".
31. FK was granted bail by an immigration judge on 9 March 2015 on conditions.

The Legal Framework

32. These are private law claims for damages in tort based on the alleged breach of domestic common law. It is agreed that the court should consider the first two liability questions in Lumba v SSHD [2012] 1 AC 245. Those are, first, whether there is a liability in principle and second, if so, whether the Claimants have established an entitlement in principle to compensatory damages or only nominal damages. I was told that the issue of quantum should be capable of resolution without further recourse to the court in the light of the finding on liability in principle.
33. It is necessary first to set out the position in English domestic law. I then address the significance of the Dublin III Regulations, the alleged failure to follow published policy, the Hardial Singh principles and, briefly, Article 5 ECHR.

Domestic Law

34. Section 3 of the Immigration Act 1971 sets out the requirement for a person who is not a UK citizen (or a person with a right of abode) to be granted leave to enter, or leave to remain, in the United Kingdom. A person without a current valid leave to remain is subject to administrative removal or deportation. The 1971 Act provides broad powers of detention pending deportation or removal in Schedules 2 and 3.
35. Paragraph 16(2) of Schedule 2 Part 1 to the 1971 Act provides the power to detain pending removal:

"(2) If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A or 12 to 14, that person may be detained under the authority of an immigration officer pending —

a decision whether or not to give such directions;

his removal in pursuance of such directions."

(emphasis added)

36. The exercise of the powers to detain a person administratively is subject to well established common law limitations. They were set out in R v Governor of Durham Prison Ex Party Hardial Singh [1984] 1 WLR 704. Those principles were authoritatively summarised by Lord Dyson in Lumba.
37. As Rix LJ held in AM (Angola) [2012] EWCA Civ 521:

"limitations on the analogous power of detention under the 1971 Act's Schedule 3 (deportation cases) as articulated by Woolf J in R v. Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 and distilled by Dyson LJ in R (I) v. SSHD [2002] EWCA Civ 888, [2003] INLR 196 at [46] are equally applicable to Schedule 2 cases: and were approved in R (Lumba) v. SSHD [2011] UKSC 12, [2011] 2 WLR 671, see at [22] per Lord Dyson JSC."

38. In AA (Afghanistan) [2012] EWCA Civ 1383, the Court of Appeal held that for detention to be lawful under this power it was not necessary for the Defendant to establish with certainty that the person was someone in respect of whom removal directions could be made stating:

"40. … as Ms Chan further submits, the crucial words in the statutory detention power are the opening words, namely 'If there are reasonable grounds for suspecting'. In my judgment, this is correct and these words are unequivocal. They mean that the statutory detention power is exercisable when the Secretary of State forms the view that there are reasonable grounds for suspicion. It is not necessary for her also to show that the matters which she suspects are in fact as she reasonably suspects them to be."

Dublin III

39. The Claimants rely on the provisions of Article 28 of EU Regulation 604/2013, "Dublin III":

"Article 28

1. Member States shall not hold a person in detention for the sole reason that he or she is subject to the procedure established by this Regulation.

2. When there is a significant risk of absconding, Member States 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 effectively.

3. Detention shall be for as short a period as possible and shall be for no longer than the time reasonably necessary to fulfil the required administrative procedures with due diligence until the transfer under this Regulation is carried out.

Where a person is detained pursuant to this Article, the period for submitting a take charge or take back request shall not exceed one month from the lodging of the application. The Member State carrying out the procedure in accordance with this Regulation shall ask for an urgent reply in such cases. Such reply shall be given within two weeks of receipt of the request. Failure to reply within the two-week period shall be tantamount to accepting the request and shall entail the obligation to take charge or take back the person, including the obligation to provide for proper arrangements for arrival.

Where a person is detained pursuant to this Article, the transfer of that person from the requesting Member State to the Member State responsible shall be carried out as soon as practically possible, and at the latest within six weeks of the implicit or explicit acceptance of the request by another Member State to take charge or to take back the person concerned or of the moment when the appeal or review no longer has a suspensive effect in accordance with Article 27(3).

When the requesting Member State fails to comply with the deadlines for submitting a take charge or take back request or where the transfer does not take place within the period of six weeks referred to in the third subparagraph, the person shall no longer be detained. Articles 21, 23, 24 and 29 shall continue to apply accordingly.

4. As regards the detention conditions and the guarantees applicable to persons detained, in order to secure the transfer procedures to the Member State responsible, Articles 9, 10 and 11 of Directive 2013/33/EU shall apply."

40. It is necessary to consider both whether the relevant provisions of that Article have direct effect and its proper construction.

Article 28 – Direct Effect?

41. It is common ground that Dublin II, the predecessor regulation to EU Regulation 604/2013, did not have direct effect, (see MK (Iran) v SSHD [2010] 1 WLR 2059 at 42, AR (Iran) v SSHD [2013] EWCA Civ 778, Kheirollahi-Ahmadroghani v SSHD [2013] EWHC 1314 (Admin); Germany v Puid (C-4/11) [2014] QB 346), and Abdullahi [2013] EUECJ). The question is whether the position is different under Dublin III.
42. It is also common ground that Regulations are capable of direct effect in the same way as treaty provisions (Leonesio v Italian Ministry of Agriculture [1972] ECR 293). A provision which is sufficiently clear and unconditional, and requires no legislative intervention can be invoked by individuals against the State (Case 26/62 Van Gend en Loos v Nederlanse Administratie der Belastingen [1963] ECR 1).
43. The Claimants argue that one of the purposes of Dublin III was to improve legal safeguards for asylum seekers and that, unlike Dublin II, it was not limited to regulating duties and obligations of Member States. For example, they say that Articles 4, 5 and 8 regulate duties, powers and rights as between individuals and Member States rather than merely between Member States. Article 28, they submit, should be similarly construed. Article 28, they argue, is clear and unconditional, does not require any positive legislative measure on the part of the UK and accordingly has direct effect.
44. The Claimants refer me to the opinions of Advocate General Sharpston in Ghezelbash v Staatssectaris van Veiligheid en Justitie (Case C-63/15) and in Karim v Migrationsverket (Case C-155/15).
45. For the Defendant, Ms Anderson argues that Article 28 does not create individual rights. The Dublin III Regulation, she argues, was not intended to alter the longstanding position that the Dublin arrangements do not confer individual rights. Even if the transfer aspect of the Dublin III Regulation could be challenged, there is nothing to suggest that there was any intention that Article 28 should confer individual rights. In any event, it is said, the terms of Article 28 do not create a clear, precise and unconditional outcome, "which is the cornerstone of conferring a directly effective right".

Discussion

46. It is to be noted that the full title of Dublin III is:

"Regulation (EU) No 604/2103 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast)."

47. As the Defendant points out, the preamble emphasises the place this regulation has in the EU structure for managing asylum claims. Paragraph 1 makes it clear that the Regulation is being recast in the interests of clarity and in the light of the fact that changes are being made to Dublin II, which established the criteria and mechanisms for determining the responsible Member State.
48. It is clear that the assumption underlying the Regulation is that all Member States respect the refoulement provision of the Geneva Convention and all are, at least in principle, safe countries for asylum seekers. The Regulation is aimed at ensuring a common system of managing claims to asylum status. The third and fourth paragraphs of the preamble read:

"(3) The European Council, at its special meeting in Tampere on 15 and 16 October 1999, agreed to work towards establishing the CEAS, based on the full and inclusive application of the Geneva Convention Relating to the Status of Refugees of 28 July 1951, as supplemented by the New York Protocol of 31 January 1967 ('the Geneva Convention'), thus ensuring that nobody is sent back to persecution, i.e. maintaining the principle of non-refoulement. In this respect, and without the responsibility criteria laid down in this Regulation being affected, Member States, all respecting the principle of non-refoulement, are considered as safe countries for third-country nationals.

(4) The Tampere conclusions also stated that the CEAS should include, in the short-term, a clear and workable method for determining the Member State responsible for the examination of an asylum application."

49. As to the Regulation itself, Article 1 identifies the subject matter of the Regulation as: "laying down the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person ('the Member State responsible')".
50. In my judgment, it is plain from a reading of the whole Regulation that its primary objective is improving the mechanics of determining which Member State is responsible for examining an asylum application. A determination to avoid forum shopping remains central to the Dublin arrangements. That was true for Dublin II and it remains true for Dublin III.
51. That notwithstanding, however, there does seem to me an argument of substance that certain provisions of the Regulation are capable of having direct effect so as to permit an individual to invoke them against the State. In other words, there is force in the point that, alongside changes to the arrangements between Member States, the Regulation appears to contemplate giving rights to individuals. One such Article is Article 27.
52. On 17 March 2016 Advocate General Sharpston considered the proper interpretation of Article 27 in Ghezelbash and in Karim. I heard supplementary submissions on those cases on 19 May 2016. In each case an applicant for asylum sought to challenge the decision of the competent authorities in the Member State where he is located to transfer him to another Member State which had agreed to take responsibility for examining the asylum claim. The question that arose was whether such a person could appeal or bring review proceedings under Article 27(1) of the Dublin III Regulation to challenge a transfer decision on the ground that the Chapter III criteria to determine the responsible Member State have been wrongly applied.
53. It is worth setting out Article 27 in full:

Article 27

Remedies

1. The applicant or another person as referred to in Article 18(1)(c) or (d) shall have the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal.

2. Member States shall provide for a reasonable period of time within which the person concerned may exercise his or her right to an effective remedy pursuant to paragraph 1.EN 29.6.2013 Official Journal of the European Union L 180/45

( 1 ) OJ L 348, 24.12.2008, p. 98.

3. For the purposes of appeals against, or reviews of, transfer decisions, Member States shall provide in their national law that:

(a) the appeal or review confers upon the person concerned the right to remain in the Member State concerned pending the outcome of the appeal or review; or

(b) the transfer is automatically suspended and such suspension lapses after a certain reasonable period of time, during which a court or a tribunal, after a close and rigorous scrutiny, shall have taken a decision whether to grant suspensive effect to an appeal or review; or

(c) the person concerned has the opportunity to request within a reasonable period of time a court or tribunal to suspend the implementation of the transfer decision pending the outcome of his or her appeal or review. Member States shall ensure that an effective remedy is in place by suspending the transfer until the decision on the first suspension request is taken. Any decision on whether to suspend the implementation of the transfer decision shall be taken within a reasonable period of time, while permitting a close and rigorous scrutiny of the suspension request. A decision not to suspend the implementation of the transfer decision shall state the reasons on which it is based.

4. Member States may provide that the competent authorities may decide, acting ex officio, to suspend the implementation of the transfer decision pending the outcome of the appeal or review.

5. Member States shall ensure that the person concerned has access to legal assistance and, where necessary, to linguistic assistance.

6. Member States shall ensure that legal assistance is granted on request free of charge where the person concerned cannot afford the costs involved. Member States may provide that, as regards fees and other costs, the treatment of applicants shall not be more favourable than the treatment generally accorded to their nationals in matters pertaining to legal assistance.

Without arbitrarily restricting access to legal assistance, Member States may provide that free legal assistance and representation not be granted where the appeal or review is considered by the competent authority or a court or tribunal to have no tangible prospect of success.

Where a decision not to grant free legal assistance and representation pursuant to this paragraph is taken by an authority other than a court or tribunal, Member States shall provide the right to an effective remedy before a court or tribunal to challenge that decision.

In complying with the requirements set out in this paragraph, Member States shall ensure that legal assistance and representation is not arbitrarily restricted and that the applicant's effective access to justice is not hindered.

Legal assistance shall include at least the preparation of the required procedural documents and representation before a court or tribunal and may be restricted to legal advisors or counsellors specifically designated by national law to provide assistance and representation.

Procedures for access to legal assistance shall be laid down in national law.

54. At paragraph 57 of her opinion the AG said:

"Article 27(1) of the Dublin III Regulation…creates, in unequivocal terms, a 'right to an effective remedy'. What that remedy is to be is also specified: 'in the form of an appeal or a review, in fact or in law, against a transfer decision, before a court or tribunal'. A number of differences, additions and clarifications to be found in the wording of Article 27(1) as compared with its predecessor, Article 19(2) of the Dublin II Regulation, should be noted.

58. First, the right of appeal against (or review of) a transfer decision is available to all applicants for asylum against whom a transfer decision has been taken. Second, the right of appeal or review is expressed in mandatory terms ('the applicant … shall have the right …'). Third, the appeal or review is to cover both fact and law. Fourth, the appeal or review is to provide judicial oversight of the administrative decision taken by the competent authorities (because it is brought 'before a court or tribunal'). Finally, Member States must also allow applicants a reasonable period of time within which to exercise their right to an effective remedy (Article 27(2))."

55. At paragraph 70-74, she said:

"… it seems to me over-simplistic to describe the Dublin III Regulation purely as an inter-State instrument. Whilst certain inter-State aspects indubitably remain, the legislator has introduced and reinforced certain substantive individual rights and procedural safeguards. An example of the former is the right to family reunification in Articles 9 to 11. The latter is reflected in, for example, Article 4 (an applicant's right to information) and Article 5 (the right to a personal interview). Both provisions underline the importance of the information provided by the applicant in the process of determining the responsible Member State within the scheme of the Dublin III Regulation."

"I do not consider that making an application to a court to seek judicial scrutiny of an administrative decision can properly be equated with forum shopping. As I see it, the appeal or review under Article 27 protects the individual against disregard or incorrect characterisation of the relevant facts and against misinterpretation and misapplication of the relevant law. In a European Union founded on the rule of law, that is surely a legitimate objective."

56. She then turned to consider which of the three possible "options" for the interpretation of the Regulation she favoured. At paragraphs 76 – 83 she said:

"76. … in the present case Mr Ghezelbash is not invoking breach of a specific right conferred under the Dublin III Regulation, such as those laid down in Articles 4 and 5, nor does he seek to rely on the provisions concerning family reunification in Articles 9 to 11. He wishes to challenge an application of the Chapter III criteria by the competent authorities resulting in a transfer decision that, if executed, will remove him from the Netherlands to France. If — and I emphasise that word — his version of the facts as supported by the circumstantial evidence is correct, he is indeed making his first application for international protection in the Netherlands and, applying the Chapter III criteria, his application should be processed there. Unless Article 27(1) is construed in accordance with the third option, there is no mechanism whereby he can make his views known effectively and challenge that transfer decision.

77. My starting point for the analysis of the third option is that a transfer decision is potentially capable of affecting an asylum applicant's interests adversely. Were that not so, there would have been little purpose in introducing a mandatory right of appeal or review in Article 27(1) of the Dublin III Regulation.

78. Outside the context of what would be covered by the second option, can a transfer decision potentially affect an asylum seeker's interests adversely?

...

80. I note, in this connection, that the notion that establishing the responsible Member State is always neutral for applicants is not a universal view. It has been questioned by the European Court of Human Rights ('the Strasbourg Court'); and this Court has of course acknowledged that there is no conclusive presumption that an asylum seeker's fundamental rights will be observed in the Member State primarily responsible for his application. Other strands in this Court's case-law likewise suggest, when applied by analogy, that it may be more appropriate to take account of the individual position of the applicant when determining the responsible Member State than to disregard the impact on the person concerned.

81. The point may be simply put: where there is material to support an arguable case that a transfer decision is based on a misapplication of the Chapter III criteria, does the principle of effective protection and/or rights of the defence lead to the conclusion that an applicant should be able to challenge that transfer decision under Article 27(1) of the Dublin III Regulation?

82. The Court has already held, in relation to Directive 2004/83, that observance of the rights of the defence constitutes a fundamental principle of EU law.  It seems to me that, by analogy, the same must hold good in respect of the Dublin III Regulation, which will determine which Member State applies the successor to Directive 2004/83, namely the Qualification Directive, to any particular claim. Rights of the defence are, moreover, affirmed in Article 47 of the Charter which ensures respect of both the rights of the defence and the right to fair legal process in all judicial proceedings.  The Court's settled case-law confirms the importance of the right to be heard and its very broad scope in the EU legal order, considering that it must apply in all proceedings likely to culminate in a measure adversely affecting a person.

83. The right to an effective remedy in Article 47 of the Charter corresponds to the rights guaranteed by Article 13 of the ECHR. It follows from Article 52(3) of the Charter that the case-law of the Strasbourg Court is relevant in interpreting the scope of that provision. That Court has held there must be remedies available at national level which enforce the rights and freedoms guaranteed. It requires provision of a domestic remedy to deal with the substance of an arguable complaint and to grant appropriate relief, and that remedy must be effective in practice as well as in law.

84. In my view, these arguments militate in favour of endorsing the third option for interpreting Article 27(1) of the Dublin III Regulation."

57. The CJEU has yet to consider Ghezelbash and Karim, and an opinion of the AG is not binding on me^[1]. But the AG's analysis is persuasive.
58. Dublin III is drafted in notably broader terms, with a notably greater focus on the position of individual applicants for asylum, than Dublin II. In my judgment a powerful case can be made in respect of a number of Articles, notably Article 27, that they were intended to be of direct effect. Whether or not any particular Article can be relied upon by an individual against a Member State, however, turns on an analysis of the Article in question. For present purposes, therefore, it is necessary to consider in detail the terms of Article 28.

Article 28 – Proper Construction

59. The Claimants argue there is, at its lowest, a presumption of liberty under the Dublin III Regulation where a person is subject to the transfer procedure. But the Claimants go much further. First, it is said that that presumption of liberty is governed by the fundamental EU law principles of necessity and proportionality. The principles of proportionality require minimum interference and individualised consideration of the need for a person's detention. These general principles, Mr Chirico argued, cannot stand alongside any assertion that "imminent removal directions give rise, automatically or through generalising presumption, to a necessity for detention".
60. Second, and for present purposes of even greater significance, it is said that Article 28(2) has the effect that it is only when there is a significant risk of absconding, that Member States may detain the person concerned in order to secure transfer, and then only on the basis of an individual assessment and only in so far as detention is proportionate and other less coercive alternative measures cannot be applied effectively.
61. Mr Chirico contended that, if that is right, these provisions very significantly reduce the grounds upon which detention may be justified in the Dublin III context. Detention, it is said, is not permitted on the sole ground that removal is imminent, or that there is a realistic prospect of removal. Domestic law, so far as it permits otherwise, is displaced.
62. The Defendant submits that Article 28 means what it says. Article 28(1) requires that Member States should not make provision to treat foreign nationals falling within the Dublin process as a distinct class that will always be detained on the basis that they are within the Dublin process as the sole detaining criterion. Article 28(1) effectively says "do not detain foreign nationals falling within the Dublin system solely because they fall within the Dublin system where they would not otherwise be detained under national law".
63. The Defendant argued that the Claimants' submissions erroneously seek to do the complete converse – to require Member States to treat Dublin cases as a distinct class of case and to misapply national provisions so that detention can only be justified on a Dublin basis and so only where certain conditions apply. She says that the Claimants have conjured a "presumption of liberty" from a provision that concerns only the extent to which simply being within the Dublin process in itself can be used as a justification for detention.
64. In the course of argument at the March 2016 hearing I put to Mr Chirico what had been my reading of Article 28(1) when I first considered it, before I had had sight of the skeleton arguments in this case. I said that Article 28(1) appeared to me to mean that a Member State could not hold a person in detention simply because he was subject to the Dublin III procedures. Mr Chirico agreed. I suggested that that carried with it the implication that, if their detention was justified on other grounds under national law, Article 28 did not make that detention unlawful. Mr Chirico agreed that that might flow from Article 28(1) if read alone, but he said such an interpretation could not survive consideration of Article 28 (2).
65. I disagree. Further reflection has confirmed me in the view I expressed as to the natural reading of Article 28 (1). And if that is right, I fail to see how Article 28(2) has caused the radical transformation of English domestic law governing the removal of non-UK citizens for which Mr Chirico contends. Article 28(2), in my judgment, applies in the circumstances covered by Article 28(1), namely where the detention is solely for the purpose of a removal under Dublin and not when the detention is authorised under some free-standing domestic law provision.
66. The Immigration Act 1971 provides that a person who does not have current valid leave to remain is subject to administrative removal. The Claimants fall into that category. As noted above, the 1971 Act gives powers of detention provided by paragraph 16(2) of Schedule 2. That was the power exercised in the case of these Claimants. The fact that the Defendant then decided to employ the Dublin III provisions to effect removal to Bulgaria does not affect the legality of the detention. Article 28 governs and conditions the exercise of powers to detain when Dublin III is the source of the power to detain and remove; it does not abolish the pre-existing power under English domestic law to detain a non-UK citizen with no right to enter or remain in the UK pending their removal by whatever lawful means are available to the Defendant.
67. When Article 28(2) refers to "the person concerned", it is referring to persons described in Article 28(1), namely a person held "in detention for the sole reason that he or she is subject to the procedure established by this Regulation". The detention referred to in 28(3) is detention pursuant to 28(1). None of the remainder of the Article applies to a person whose detention is based on a power other than the Dublin Regulations.
68. In those circumstances I reject the Claimants' argument that they can point to alleged breaches of that Article as being enough to render their detention unlawful.
69. Even if were not possible to conclude with confidence that that is the proper interpretation of Article 28, it seems to me sufficiently realistic a reading of the provision as to mean that it cannot be said that the Article is sufficiently clear and unconditional, as to make reliance on it possible by a detained person in the position of these Claimants.

Conclusion on Article 28

70. It follows that I conclude that Dublin III is capable of direct effect, that whether or not it has that effect depends on an analysis of the individual Article concerned but that Article 28 does not provide an individual with a right to challenge administrative detention by the UK in circumstances such as the present.

A Reference

71. Mr Chirico submitted that if I was minded to reach this conclusion on the construction of Article 28, I should make a reference to the CJEU. I have also given consideration to whether my conclusion on direct effect requires a reference.
72. In addressing this issue I have followed the guidance of Sir Thomas Bingham MR in R v International Stock Exchange of the United Kingdom and the Republic of Ireland Ltd, Ex p Else (1982) Ltd. [1993] QB 534 (at page 545). The Master of the Rolls said:

"I understand the correct approach and principle of a national court (other than a final court of appeal) to be quite clear: if the facts had been found and the Community law issue is critical to the court's final decision, the appropriate course is ordinarily to refer the issue to the Court of Justice unless the national court can with complete confidence resolve the issue itself. In considering whether it can with complete confidence resolve the issue itself, the national court must be fully mindful of the differences between national and Community legislation, of the pitfalls which face a national court venturing into what may be an unfamiliar field, of the need for uniform interpretation throughout the Community and of the great advantages enjoyed by the Court of Justice in construing Community instruments. If the national court has any real doubt, it should ordinarily refer."

73. On each of the points addressed, and for the reasons I have set out, I have no real doubt as to the conclusions I have reached and accordingly I decline to make a reference.

A Failure to Follow Published Policy?

74. The Defendant has published policy guidance on the propriety of detention where there is independent evidence that the individual concerned has been tortured. The Defendant is obliged to follow policy, absent good reason not to do so. A failure to follow such policy may be capable of making the Defendant liable for the tort of false imprisonment. Where the breaches bear directly upon detention they may, by vitiating authority for detention, sound in damages for false imprisonment: see Lumba and R (Kambadzi) v.SSHD [2011] UKSC 23, [2011] 1 WLR 1299. Causation goes to damages not liability (ibid).
75. The decision on such questions is for the court itself, and does not depend on the application of Wednesbury principles of review: R (A) v. SSHD [2007] EWCA Civ 804 at [71] per Keene LJ, and Anam v. SSHD [2010] EWAC Civ 1140 at [77] per Maurice Kay LJ. At the liability stage, the burden of proving lawfulness is on the Defendant: Lumba at [44].
76. In the cases of three of the Claimants, HK, SK and HH, it is alleged that the Defendant failed to follow, or failed rationally to follow, her published policy on the detention of a person about whom there is independent evidence that he had been tortured. It is said that there was, at material times, independent evidence that these Claimants had been tortured, and the Defendant acted unlawfully by failing to apply her published policy applicable to such cases. It is said, and I accept, that detention affected by public law error is unlawful, provided only that there is sufficient connection between the error and the decision to detain: the public law error must "bear on and be relevant to the decision to detain" (R (Lumba) v SSHD [2012] 1 AC 24 at 68; 207).
77. The Defendant's policy on detention was set out in Chapter 55 of the Enforcement Instructions and Guidance ("EIG"). Paragraph 55.10 of EIG lists certain categories of persons who are "normally considered suitable for detention in only very exceptional circumstances". Those categories include, for example, "those suffering from serious medical conditions which cannot be satisfactorily managed within detention" and "those suffering from serious mental illness which cannot be satisfactorily managed within detention". It also includes those "where there is independent evidence that they have been tortured". It is to be noted that there are no qualifying words to the latter category.
78. It was held in R (EO) v SSHD [2013] EWHC 1236 (Admin) at [59] that the rationale behind the policy is that "those who have suffered torture in the past are disproportionately adversely affected by detention". It was held in AM (Angola) v SSHD [2012] EWCA Civ 521 at [30] that the requirement for "evidence" is not the same as proof.
79. The Defendant has in place a procedure which is intended to ensure that torture victims (and those suffering from serious mental and physical illness) are identified immediately upon admission to an immigration removal centre. This procedure is provided by Rules 33-35 of the Detention Centre Rules 2001:

"HEALTH CARE

Medical Practitioner and Health Care Team

33. (1) Every detention centre shall have a medical practitioner, who shall be vocationally trained as a general practitioner and a fully registered person within the meaning of the Medical Act 1983(a).

(2) Every detention centre shall have a health care team (of which the medical practitioner will be a member), which shall be responsible for the care of the physical and mental health of the detained persons at that centre…

(5) Every request by a detained person to see the medical practitioner shall be recorded by the officer to whom it is made and forthwith passed to the medical practitioner or nursing staff at the detention centre.

(8) The medical practitioner shall obtain, so far as reasonably practicable, any previous medical records located in the United Kingdom relating to each detained person in the detention centre...

(10) All detained persons shall be entitled, if they so wish, to be examined only by a registered medical practitioner of the same sex, and the medical practitioner shall ensure that all detained persons of the opposite sex are aware of that entitlement prior to any examination.

Medical Examination upon Admission and Thereafter

34. (1) Every detained person shall be given a physical and mental examination by the medical practitioner (or another registered medical practitioner in accordance with rules 33(7) or (10)) within 24 hours of his admission to the detention centre.

(2) Nothing in paragraph (1) shall allow an examination to be given in any case where the detained person does not consent to it.

(3) If a detained person does not consent to an examination under paragraph (1), he shall be entitled to the examination at any subsequent time upon request.

Special Illnesses and Conditions (including torture claims)

35. (1) The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention.

(2) The medical practitioner shall report to the manager on the case of any detained person he suspects of having suicidal intentions, and the detained person shall be placed under special observation for so long as those suspicions remain, and a record of his treatment and condition shall be kept throughout that time in a manner to be determined by the Secretary of State.

(3) The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture.

(4) The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay.

(5) The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it, and make any special arrangements (including counselling arrangements) which appear necessary for his supervision or care."

80. The Defendant argues that the application of policy can be reviewed only on Wednesbury grounds. Where the policy applies, consideration will need to be given to it, but there is no formalistic rule as to how that must be demonstrated. Consideration, it is said, was given specifically to whether the relevant Claimants had met the policy requirements on the basis of the Rule 35 reports and the real complaint is disagreement with the result of the policy consideration. The question whether an individual is a victim of torture must be considered in the round, taking account of all relevant considerations.
81. In AM (Angola), the Court of Appeal was considering an appeal against refusal of judicial review by an applicant whose claim for asylum was based on reports by a nurse working at a human rights charity. The nurse's reports referred to scarring of AM consistent with deliberately inflicted injury and to AM as being "a grossly traumatized young woman" following her treatment by Angolan soldiers. The nurse confirmed that she had read and understood the Istanbul Protocol on the effective investigation and documentation of torture. The Defendant rejected the fresh representations and discounted the reports on the basis of AM's previous lack of credibility. AM argued that her detention had breached the Defendant's detention policy. The Court of Appeal allowed the appeal, holding that the report of the nurse, Ms Kralji, constituted independent evidence that AM had been tortured.
82. Rix LJ, with whom the other members of the court agreed, held:

"29. In my judgment, Ms Kralj's reports constituted independent evidence of torture. Ms Kralj was an independent expert. She was expressing her own independent views. As the judge himself said, her scarring report provided independent evidence of AM's scarring, and that seven of the scars were consistent with deliberately inflicted injury. If they were deliberately inflicted, who had inflicted them? It may have been in theory possible that they were deliberately inflicted by AM herself, or even by another person for some reason other than torture, but that would not be likely. It was not a thesis that Ms Kralj put forward. On the contrary, it is evident from her assessment that she believed that AM had suffered torture and rape and that those misfortunes had rendered her the 'grossly traumatized' woman that she found her to be, with 'feelings of deep and intense shame and self disgust', 'feelings of shame and stigmatization', and a 'fragile mental state'. Those findings are Ms Kralj's interpretation of what she found, they are not the mere assertions of AM.

30. On the contrary, as Ms Kralj repeatedly observed, AM was reticent and understated. As the judge himself rightly stated, Ms Kralj 'believed the claimant'. That belief, following an expert examination and assessment, also constituted independent evidence of torture. Ms Kralj's belief was her own independent belief, even if it was in part based on AM's account. However, the judge was mistaken to suggest that such belief was merely as a result of 'taking everything she said at face value'. A fair reading of her reports plainly went very much further than that. If an independent expert's findings, expert opinion, and honest belief (no one suggested that her belief was other than honest) are to be refused the status of independent evidence because, as must inevitably happen, to some extent the expert starts with an account from her client and patient, then practically all meaning would be taken from the clearly important policy that, in the absence of very exceptional circumstances suggesting otherwise, independent evidence of torture makes the victim unsuitable for detention. That conclusion is a fortiori where the independent expert is applying the internationally recognised Istanbul Protocol designed for the reporting on and assessment of signs of torture. A requirement of 'evidence' is not the same as a requirement of proof, conclusive or otherwise. Whether evidence amounts to proof, on any particular standard (and the burden and standard of proof in asylum cases are not high), is a matter of weight and assessment.

31. The only reason ultimately given by the judge for not accepting Ms Kralj's reports as independent evidence of torture is contained in the last sentence of his paragraph 24, where he said: 'But the report did not provide independent evidence that the claimant had been tortured because that depended upon accepting the claimant's account how they were caused' (emphasis added). If the judge was talking about Ms Kralj's belief, that was plainly independent evidence, even if it depended in part on formulating her opinion in the light of AM's account. If, however, the judge was referring to the 'acceptance' by the Secretary of State, that is neither a matter of evidence, nor is it independent, and the judge would be adding a new requirement, not mentioned in the Guidance, to qualify the Secretary of State's policy.

32. I therefore conclude that, irrespective of whether the burden of proof falls on the Secretary of State or on AM, Ms Kralj's reports constitute independent evidence that AM had been tortured."

83. I take from that that the following questions are likely to be important:

i) Was the reporting clinician independent and was s/he expressing independent views?

ii) Did the clinician express a view, whether clinical or not, or was s/he merely reciting what the detainee told him or her?

iii) Did the clinician indicate s/he believed the detainee's account?

iv) Was there supporting evidence independent of the doctor's views, such as scarring, which was supportive of (by which I mean consistent with) the account of torture?

v) Was the doctor applying the internationally recognised Istanbul Protocol?

84. In my judgment, the acid test in practice in cases such as this is whether the examining clinician has gone beyond merely reporting what the detainee has told him or her, and has offered an opinion as to whether that account is either likely to be right or is, at least, consistent with the clinical signs observed.
85. The Rule 35 reports were prepared on HK on 5 February 2015, on HH on 17 June 2015 and 19 June 2015, and on SK on 7 January 2015. In each case, an appropriately qualified medical expert expressly stated that he/she had concerns that the Claimant may have been a victim of torture. I now turn to apply the approach set out above to the facts of these three cases.

HK

86. The first Claimant, HK, was the subject of a Rule 35 report dated 5 February 2015. A doctor, whose name appears to be Dr Thomas, completed the form. He did not tick the box indicating that he had concerns that this detainee may have been the victim of torture. However, he completed Section 5 of the report which contains a box headed "the detainee has discussed the following and I am concerned that this individual might have been a victim of torture…". Under that box the doctor has recorded what it appears the Claimant told him about his ill treatment. In answer to the question "what appears to have happened?" the doctor has entered, "witnessed execution of brother. Was also beaten by police to the head and knee… He continues with eye and knee pain… He gets very emotional, has poor sleep, nightmares and flashbacks of his brother being shot". The doctor explains that the basis of his concern was the Claimant's own account, but he adds "during my review he became very tearful, but in a manner consistent with the…". That last observation ends in mid-sentence.
87. A Mr Andrew Weir, of the Defendant, responded to that report in a letter dated 11 March 2015. He recites what is recorded on the form and then asserts:

"it is not accepted that this Rule 35 report constitutes independent evidence of torture, as it is simply a record of what you said to the medical practitioner. Your statement has not led the practitioner to express their own reasoned concern that you may be a victim of torture and while noting the presentation during the interview they have not identified other evidence leading them to have such a conclusion… In addition it is not considered… that your claimed experiences in Iraq could be considered torture as there is no suggestion that the Islamic State were aware of your presence or that you were forced by Islamic State to witness the murder of your brother."

88. Mr Weir goes on to note that, "in the light of the expected time scale for progressing your third country case, you were granted temporary admission on 5 February 2014 prior to receipt of the Rule 35 report…".
89. In my judgment, although the doctor did not tick the relevant box, he made it clear in Section 5 that he was concerned that the Claimant might have been the victim of torture. He referred not only to what he saw happen to his brother, but also to the beatings he had received from the police. He set out the apparent consequences of his experiences. The last unfinished sentence, with which the report ends, is pregnant with the obvious possibility that he was about to say that he reacted in a manner consistent with the ill treatment he had described, which would be an important clinical finding.
90. That report cried out for a further inquiry by the Home Office of the doctor concerned. No such inquiry was made. There is no challenge in these proceedings to HK's detention prior to 5 February 2015; his challenge relates to a later detention between 18 May and 30 June 2015. The Defendant's difficulty is that no further inquiry was made in that period and when the Claimant was re-detained for the period between 18 May and 30 June 2015 there is no contemporaneous evidence to suggest that consideration was given to the detention policy at all. Certainly there is nothing that I have seen that suggests that there was a reasoned approach by the Defendant to the concerns expressed by Dr Thomas.
91. That was flatly contrary to the Defendant's own policy. The witness statement of Ms Elizabeth Adegbemi, for the Defendant, provides no answer to that point. Accordingly I hold that for the period between 18 May and 30 June 2015 HK's detention was unlawful. Furthermore, in my judgment there is no basis for saying that, absent this failure, the Claimant would necessarily have been detained for this period; in fact it seems to me likely he would not. Accordingly, nominal damages will not suffice.

HH

92. A Rule 35 report was also prepared on HH. Dr E Devanish prepared a report dated 17 June 2015 in which he recorded his concerns that "this detainee may have been the victim of torture". In Section 5 of the report he set out "the clinical reasons leading to that conclusion". Dr Devanish provides a lengthy hand written report of the Claimant's account to him of his ill treatment. He ended that report with the following, "he doesn't have any scars from the torture as there were bruises at the time but no broken skin".
93. A "supplementary" Rule 35 report was prepared on HH. That report was dated 19 June 2015 and was prepared by Dr Keith Jenkins. That doctor too noted his "concerns that this detainee may have been the victim of torture". Annotating the report with a hand written observation, "previous self-harm, following alleged torture". The relevant clinical information includes the following: "this is an addendum to his Rule 35 dated 17 June 2015. Mr Hemmati has noted that he did not mention that when he was in Iran and being tortured, after one month intermittent torture, he did attempt to kill himself by cutting the vein in his left cubital fossa…". Dr Jenkins notes scars to the left and right arm.
94. The first of those Rule 35 reports prompted a reply from a Mr Mark Hicks of the Defendant, dated 18 June 2015. That response ends with the following:

"the decision has been made to keep you in detention as the doctor has summed up your account, but has not stated that he believes you to be a victim of torture. As removal directions are set, the time you have left in detention is minimal. You should raise your concerns about being removed to Iran upon your arrival in Bulgaria."

95. Following the second Rule 35 report, Mr Hicks provided a response, dated 22 June 2015, which again recorded what the doctor had written. That response ends:

"whilst the doctor states that you have scars which could have been caused by self-harm (and a transfusion) he has not expressed the opinion that you are a victim of torture. Thus, there is no independent evidence of torture, so it has therefore been decided that you will remain in detention."

96. Although the doctor completing his Rule 35 form ticked the box indicating that he had concerns that HH may have been a victim of torture, the lengthy account provided as "relevant clinical information" consists entirely of recitation by the doctor of what he was told by HH. The supplementary Rule 35 report repeats the doctor's concerns that the detainee may have been a victim of torture and refers to previous self-harm allegedly following the torture. But, again, the doctor simply recites what HH told him.
97. The doctor does indeed note scars to both arms and offers the opinion that they were caused in the manner described by the Claimant. In his case, however, it seems to me that the observations of the Home Office officer, Mr Hicks, are right, that there is nowhere in the Rule 35 report any expression of opinion by the doctor that is supportive of the Claimant's contention that he was the victim of torture.
98. In those circumstances HH's claim under this head, in respect of his detention between 8 June and 18 July 2015, must fail. I reach that conclusion without reference to the witness statement of Ms Adegbemi, served on behalf of the Defendant; that statement makes the same point as I have held above is decisive.

SK

99. The Rule 35 report into SK is dated 7 January 2015. Dr Hicham Nakouzi, a GP, indicates that he has "concerns for this detainee, may have been the victim of torture". The report includes an answer to the question "what appears to have happened?". In that section, the doctor sets an account provided by the Claimant that one and a half years previously he had been kidnapped whilst in Afghanistan; he had been blindfolded for thirteen days and was beaten regularly. It was noted that his father paid a ransom of $100,000. The doctor noted that he did not appear to have any permanent physical damage but had developed anxiety attacks and PTSD. There were some physical injuries/scars and the Claimant reported headaches, migraines and difficulty sleeping. A body map was enclosed which demonstrated several scars which had been observed. It was noted that "some could be of burns".
100. The Home Office response to that letter is set out in a letter dated 9 January 2015 from Ms Amanda Wotton. She refers to the contents of the Rule 35 report and notes that the doctor had noted scars and had recorded "your subjective claim, and has drawn a connection between this and your physical and mental examination. They also have concerns that you may have been a victim of torture". She goes on:

"whilst your claim of being a victim of torture cannot be substantiated conclusively, in the lights of the doctor's comments and circumstances of your case, it has been decided that your release from detention is appropriate on this occasion."

101. SK claim relates to the periods between 20 February and 25 March 2015 and between 21 July and 11 August 2015. The concerns expressed by Dr Nakouzi remained live. They were supported by his clinical observations and had not been discounted by the Defendant. They continued to bite during these periods of detention and ought to have resulted in SK's release.
102. In her witness statement, Ms Adegbemi suggests that there were in fact "very exceptional circumstances" which justified detention in these periods. Those exceptional circumstances are said to lie in the risk that a person likely shortly to be removed might abscond, the fact that medical assessment had not suggested that detention would be, "in any way, injurious to the Claimant's health" and that there was no further Rule 35 report. I reject the submission that these factors, whether taken singularly or cumulatively, made this a "very exceptional" case, justifying departure from the Chapter 55.10 enforcement policy. These are circumstances which are likely to be common to many detained asylum seekers. I should add that there is no contemporaneous evidence of significance in support of the contention that this was an exceptional case.
103. As with HK, there is no basis for saying that, absent this failure, the Claimant would necessarily have been detained for this period; in fact it seems to me likely he would not. Accordingly, nominal damages will not suffice.

Alleged Breach of the Hardial Singh Principles

104. It is argued that all four of the Claimants were detained for a period longer than was reasonable in all the circumstances and that the Defendant failed to release them when it was, or should have been, apparent that they would not be removed within that reasonable period. It is said that in assessing the "reasonable period" for the purposes of the second and third Hardial Singh principles, all the circumstances are relevant. In particular, it is argued first, that the "very outer limit" of the reasonable period is that provided by the timeframes of the Dublin III Regulation; second, that assessment of the reasonable period is "informed" by the Chapter 55 policy; and third, that an important consideration is the impact of detention upon a vulnerable asylum seeker.
105. It is said that there was insufficient prospect of removing the Claimants within a reasonable period. In particular, "it was or should have been clear at all times (and a fortiori once judicial review proceedings had been issued) that there was insufficient prospect that these Claimants would be removed before the expiry of the reasonable period". It is Mr Chirico's case that, at the latest, detention was unlawful following the issue of judicial review proceedings, because the Defendant did not act with due expedition thereafter.
106. The Defendant submits that the Claimants' assertion that the detentions in this case exceeded the outer permissible limits does not bear scrutiny. Ms Anderson says that where the position is uncertain, there is no justification for pre-emptive release and the reasonable period will apply. There was no basis, she says, in the contemporaneous information upon which the court could now say that it was clear there was no realistic prospect of removal within a reasonable period. She says it would be extraordinary if the exercise of a statutory power could be rendered unlawful on the basis that an individual might choose to litigate.
107. In my judgment, the two critical elements of the common law test, on facts such as the present, are the requirement that detention is permissible only pending removal and the significance of a risk of absconding.
108. As to the former, in Khadir [2005] UKHL 39, [2006] 1 AC 207, the House of Lords found that it is an error of law to require that removal be "imminent" for an individual to fall within paragraph 16. Lord Brown held as follows:

"32. The true position in my judgment is this. 'Pending', in paragraph 16, means no more than 'until'. The word is being used as a preposition, not as an adjective. Paragraph 16 does not say that the removal must be 'pending', still less that it must be 'impending'. So long as the Secretary of State remains intent upon removing the person and there is some prospect of achieving this, paragraph 16 authorises detention meanwhile. Plainly it may become unreasonable actually to detain the person pending a long delayed removal (i.e. throughout the whole period until removal is finally achieved). But that does not mean that the power has lapsed. He remains 'liable to detention' and the ameliorating possibility of his temporary admission in lieu of detention arises under paragraph 21."

109. As to the latter, in R v Ghnour v SSHD [2015] EWHC 3211 (Admin), Leggatt J summarised the effect of the judgment of Lord Dyson in Lumba. As Leggatt J observed (at paragraph 8) Lumba is also authority for three further propositions:

"1. 'The risks of absconding and re-offending are always of paramount importance, since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place'. (Paragraph 121)

2. Whilst periods of detention during which the detainee seeks to exhaust appeals or other legal proceedings against his removal cannot be entirely discounted, 'if a detained person is pursuing a hopeless legal challenge and that is the only reason why he is not being deported, his deportation during the challenge should be given minimal weight in assessing what is a reasonable period of detention in all the circumstances'. (Paragraph 121)

3. A refusal to return voluntarily is relevant to an assessment of what is a reasonable period of detention if a risk of absconding can properly be inferred from the refusal. Other than in relation to the question of whether there is a risk of absconding, a refusal of voluntary return may still be taken into account but must be regarded as having limited relevance (Paragraphs 123 and 128)."

110. As Leggatt J went on to discuss, the case law establishes a fourth proposition, a proposition of central importance to the present case:

"In considering whether at any stage there is a reasonable prospect of removal, the relevant question is whether there is a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors, including any risk of absconding and any risk of danger to the public if the detainee were at liberty."

111. As the Defendant contends, in Fardous [2015] EWCA Civ 931, the Lord Chief Justice indicated the paramount importance of the risk of absconding in setting the outer limits on lawful detention. That risk is paramount because it is directly linked to the purpose of the statutory provision; if a foreign national is permitted to abscond then the statutory purpose of detention will be defeated.
112. In Muqtaar [2013] 1 WLR 649, the Court of Appeal emphasised that the third Hardial Singh principle applies only where it was apparent, on the contemporaneous information available, that at the material time there was no realistic prospect of removal within the reasonable period.
113. I have indicated above that I have not found the evidence of Ms Adegbemi of great assistance on the subject of Chapter 55.10. However, the points she makes relevant to Hardial Singh are much more powerful.
114. In her statement in the case of the first Claimant, she notes that on 22 May 2015 a four day detention review maintained detention on the basis that "at this final stage of removal" the Claimant was "at high risk of absconding". She says that it was:

"usual for there to be an advanced risk of absconding at this final stage to the removal process where removal is enforced rather than through voluntary removal arrangements…"

115. The risk of absconding continued to feature in the contemporaneous forms on the reasons for detention. Ms Adegbemi said:

"there was a risk of absconding at all times, which became especially acute at the final stage of removal where the Claimant indicated that he was resistant to removal…Whilst foreign nationals may be content to comply with any conditions to avoid detention for the time being whilst their asylum claim is being processed and removal could be resisted, once removal is about to happen the incentive to comply rather than act to avoid removal diminishes very significantly. There is no basis in this case to consider that the Claimant would report for removal at the airport and a voluntary return had not been applied for or granted."

116. In my judgment that is an entirely reasonable and appropriate assessment.
117. In her statement in respect of the second Claimant, HH, Ms Adegdemi says this:

"I note that the issue of legal proceedings does not automatically mean that an individual must be released, it is not uncommon to issue legal proceedings to block removal and in many cases detention will be maintained. The Secretary of State is not required to assume that the courts or upper tribunal cannot deal with your challenges within a reasonable period… In this case there remains significant risk of absconding, the experience being that the issue of legal proceedings does not prevent an individual from absconding and some individuals will prefer to take matters into their own hands to evade removal by seizing contact with the UK authorities… The Claimant had been able to remain in the UK undetected after his clandestine entry on a date unknown."

118. As regards the third Claimant, SK, Ms Adegdemi says:

"In this case the balance now fell in favour of detention as it was anticipated to be relatively brief and there was no sound basis to consider that removal would be effected without detention in this final stage of the process."

119. In the case of the fourth Claimant, she said:

"The Claimant did represent a risk of absconding. He had been willing and able to live in the UK for several weeks after his clandestine entry without recourse to the UK authorities, demonstrating that he could in fact evade immigration control again if he chose to. He was a single male with no wife or children in the UK to act as a mitigating tie. Further, since the Claimant had entered the UK illegally, there was no sign that he would depart voluntarily and report for removal at the airport."

120. I have already ruled that the detention of two Claimants was unlawful because of the failure to comply with the Defendant's own policy. It is not necessary to consider their position under Hardial Singh. As for the rest, in my judgment, the Hardial Singh criteria were met: the Secretary of State intended to deport the Claimants and was only using the powers to detain for that purpose; in each case the period of detention was modest in length and reasonable in all circumstances; where it becomes apparent that detention could not be effected within that reasonable period, the Claimant concerned was released, and there was no want of reasonable diligence and expedition in the process of seeking to effect removal.
121. I accept the Defendant's submission that there was no moment at which it could realistically be said that there was no realistic prospect of removal within a reasonable period. There is no obligation on the Defendant to release from detention simply because proceedings have been begun. The commencement of proceedings may require the Defendant to reassess the position but, first, she must have a reasonable period in which to do that and, second, she may nonetheless come to the conclusion, depending on the circumstances of the case and the nature of the challenge, that removal can still be achieved in a reasonable period.
122. It follows that the claims based on Hardial Singh must fail.

Article 5

123. In my view, the Article 5 claims add nothing of substance to the claims already addressed. As Ms Anderson puts it "Article 5(1)(f) ECHR so far as pleaded at all was done so on a basis entirely parasitic on the allegations of breach of domestic law".

Conclusions

124. In those circumstances, my conclusions are as follows:

(i) Article 28 of Dublin III does not have direct effect, at least in the circumstances of this case;

(ii) It is not appropriate to make a reference to the CJEU;

(iii) In respect of the first Claimant, HK, the Defendant failed properly to follow her own policy on the detention of a person about whom there is independent evidence that he had been tortured and accordingly his detention between 18 May and 30 June 2015 was unlawful;

(iv) In respect of the third Claimant, SK, the Defendant failed properly to follow her own policy and accordingly his detention between 20 February and 25 March 2015 and between 21 July and 11 August 2015 was unlawful;

(v) HK and SK have claims to damages that are not merely nominal;

(vi) The detention of FK and HH was not unlawful on Hardial Singh grounds; it is unnecessary to determine whether the detention of SK and HW was unlawful on Hardial Singh grounds in light of my findings in respect of the Defendant's policy; and

(vii) There was no separate breach of the Claimants' Article 5 Rights.

Note 1    Since this judgment was drafted, the CJEU has given judgment in Ghezelbash and Karim. The Court held that “an asylum seeker is entitled to plead, in an appeal against a decision to transfer him, the incorrect application of one of the criteria for determining responsibility laid down in Chapter III of the regulation”.    [Back]