MMM, R (on the application of) v Secretary of State for the Home Department [2016] EWHC 2655 (Admin)

Case No CO/4259/2015[2016] EWHC 2655 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/11/2016
Before
MR PETER MARQUAND(sitting as Deputy High Court Judge)
Between
The Queen (On the application of) MMMClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Mr Greg Ò Ceallaigh (instructed by Wilsons) for ClaimantMr Christopher Staker (instructed by Government Legal Department) for DefendantHearing Hearing dates: 04/10/2016
JudgmentMR PETER MARQUAND:Introduction
[1]This is a claim for unlawful detention from 24 August 2015 to 21 September 2015. The Claimant says that he is entitled to substantial damages for his detention during that period because it was unlawful to have detained him. The Defendant argues that notwithstanding an acceptance that the detention was unlawful in that period, the Claimant is only entitled to nominal damages. The Claimant challenges the application of the Defendant's policies to his detention but also claims a breach of the Dublin III Regulations.[2]Mr Ò Ceallaigh represented the Claimant and Mr Staker the Defendant. I had the benefit of their written and oral submissions, a lever arch file of documents (including a written statement from the Claimant) and a file of authorities.

Facts

[3]The Claimant is a national of Eritrea and he entered the United Kingdom in February 2015 illegally by concealing himself in a lorry. He was arrested and claimed asylum. Investigations revealed that the Claimant had applied for asylum in Switzerland in May 2014 but it was identified that the he had previously been in Italy. Italy had at the time accepted the Swiss request to take charge of the Claimant's asylum application. However, the Claimant absconded before a transfer from Switzerland to Italy could take place. The Defendant received a letter from the Swiss authorities to that effect dated 25th of February 2015.[4]On 14 March 2015 the Defendant received a report from a medical practitioner prepared under rule 35 of the Detention Centre Rules (‘the Rule 35 Report’). These reports are to comply with the requirement to report on any detained person whose health is likely to be ‘injuriously affected' by continued detention, which includes victims of torture. The report, it was agreed between the parties, did identify independent evidence of torture. On 20 March 2015, the Claimant was released from detention with reporting conditions.[5]In the meantime, various correspondence took place about Italy's responsibility for determining the asylum claim. On 31 March 2015 the Defendant decided that the Claimant could be returned to Italy for his asylum claim to be considered substantively in that country. Various correspondence took place between the parties but the next material exchange begins on 7 August 2015 when the Defendant wrote to the Claimant's solicitors confirming that the claim for asylum in the United Kingdom had been refused on 31 March 2015 and certified on Safe Third Country Grounds and enclosed a copy of that refusal (which was dated 31 March 2015 as indicated above). The letter states that “In line with Home Office protocol the asylum refusal letter is served on your client when Removal Directions have been set. For this reason your client would not have received a copy of the refusal letter…” The letter of 31 March 2015 recording the 'third country certificate' refers to a proposal to remove the Claimant to Switzerland rather than Italy. Mr Staker, on behalf of the Defendant, accepts this was an error.[6]On 24 August 2015 in compliance with the conditions set on 20 March 2015 the Claimant attended Sandford House in Solihull. On that day he was detained and the relevant forms contain the following:
“Detention is necessary as subject entered the UK illegally 09/02/2015 and claimed asylum, subject was detained before being released in March for a torture allegation to be considered. This has now been considered and Italy have accepted responsibility for the subject therefore detention can ensure imminent removal via TCU before RTD 23/09/2015”
[7]Removal directions were set on that day for 06:55 hours on 2 September 2015 on a flight to Italy. The notice to the detainee has a check box section and the box indicating that the Claimant's removal from the United Kingdom was imminent was checked. In the section beginning:
'This decision has been reached on the basis of the following factors (tick all boxes that apply):' the following boxes were selected: i) '
You do not have enough close ties (e.g. family or friends) to make it likely that you will stay in one place'; ii) ‘You have failed to give satisfactory or reliable answers to an immigration officer’s enquiries.’ iii) ‘You have previously failed or refused to leave the UK when required to do so.’[8]The factor: 'you have previously absconded or escaped' was not selected. An airline risk assessment form had been completed and apart from the fact that the Claimant had been detained, no other key risk indicators were identified. The Claimant's solicitors were notified of the removal directions by fax on 25 August at 14:57 hours.[9]On 25 August 2015 the Claimant's solicitors issued a letter before action challenging the decision to remove the Claimant to Italy on the basis that it would be a breach of Article 3 ECHR and the decision to detain the Claimant on the basis that he was a victim of torture. On 28 August 2015 Defendant responded rejecting those claims.[10]The Claimant issued judicial review proceedings and faxed the Defendant at 16:22 hours on 1 September 2015 with a letter enclosing a copy of the ‘Customer Counter Receipt' from the Court. At the time I am told that the Court was following a practice of providing a 'customer counter receipt' due to administrative pressures in issuing proceedings. The letter states:
“Please find enclosed a copy of Customer Counter Receipt form as confirmation that we have today lodged an application for Judicial Review challenging your decision to certify our client’s asylum claim on third country grounds and your decision to remove him to Italy. In light of this confirmation that a Judicial Review has been lodged we would be grateful if you could now cancel our client’s removal which has been scheduled for 6:55 AM on Wednesday 2 September in accordance with section 4.1 of chapter 60 of your Enforcement Instructions and Guidance. Further in light of the fact that our client’s removal is no longer imminent we write to request that you release him on Temporary Admission without delay. Our client will require NASS support. We request that you provide us with a written confirmation that our client’s removal directions are cancelled as a matter of urgency.”
[11]The Defendant faxed the Claimant's solicitors on 1 September 2015 at 5:01 PM to confirm cancellation of the removal directions. However it also stated:
'We wish to maintain detention.'
The relevant entry on the Case Record Sheet states:
“'reason for canx [cancellation]: JR received please not (sic) your records accordingly copy IS152D attachci (sic) CID has been updated with details of canx We wish to [maintain] detention Please contact me if you require additional information. Please acknowledge receipt of information by fax…”
CID has been updated with details of canx We wish to [maintain] detention Please contact me if you require additional information. Please acknowledge receipt of information by fax…”

CID has been updated with details of canx We wish to [maintain] detention

[12]On 9 September 2015 the sealed claim form was served by the Court on the Claimant's solicitors. On the same day the Claimant's solicitors lodged a bail application. On 15 September 2015 the Claimant's solicitors served the sealed claim form on the Defendant.[13]On 16 September 2015 the case record sheet includes the following:
“minutes below show that a judicial review claim has been filed at court. However, until a copy of the sealed claim form is served on the Secretary of State at Lit Ops (West London) the claim is not valid. Allocated to Lesley Beadle in the LO (E) senior casework team to ascertain the status of the JR claim and either remove the barrier or manage the litigation.”
[14]There is a sheet of handwritten notes by Lesley Beadle and in an entry signed on 16 September 2015 it states:
“JR receipt from the Admin Court dated 1/9/15 aside. However nothing has been received from T Sol [Treasury Solicitors] or West London as yet. The date for service on the SSHD (Secretary of State for the Home Department) has past, West London & GLD [Government Legal Department] asked to check for receipt.”
[15]On 17 September 2015 the Claimant's application for bail was heard and resisted by the Defendant. The Defendant’s documentation for that hearing includes the following: i) In the criteria for detention, which are recorded as being for the presenting officer’s eyes only, the fact that the Claimant had previously absconded from Switzerland was recorded; ii) ‘it is anticipated that the JR will be expedited and removal is considered a realistic prospect'; iii) the reasons for opposing bail were as follows:
“there are no compassionate factors or exceptional reasons to justify release at this time and as subject has already demonstrated a disregard for immigration law, there is no reason to expect that he will now comply with any conditions or not abscond if released. Subject has no family or close ties in the UK so there is no incentive for him to remain in one place, and no one to influence him to comply with any conditions if he were to be released. Subject’s removal from the UK is considered a realistic prospect so to facilitate this and to prevent absconding prior to removal, detention should be maintained.”
[16]The bail application succeeded and the Claimant's release was ordered. On 21 September 2015 the Claimant was released on bail. Lesley Beadle's hand written note on 23 September states “T Sol confirmed receipt of the JR on 15/9/15. I am waiting for a copy of the bundle and [illegible] T Sol. Further chaser sent. Hold.”

Further procedural history

[17]The Defendant was late serving an Acknowledgement of Service and Summary Grounds of Defence notwithstanding an Order of the Court extending time to 9 November 2015. The documentation was not in fact served until 26 February 2016. Permission to apply for judicial review was refused on the papers by Order dated 14 March 2016 but limited permission was given at the oral renewal application by Mr Justice Cranston recorded in an Order dated 26th April 2016. The challenge to the Claimant's removal to Italy was refused and is not part of the matter before me.[18]On 1 August 2016 the Defendant wrote to the Claimant's solicitors asking that they withdraw the claim in light ofR (Khaled) v SS HD [2016] EWHC1394 (which I will deal with below). The Claimant responded on 9 August pointing out that this was not the only ground upon which the challenge was made and maintaining that the case should be transferred to the Queen’s Bench Division rather than the Administrative Court. On 15 August 2016 the Defendant responded stating that the Detailed Grounds would be provided and refused to agree to the matter being transferred. On 21 September 2016 the Claimant applied to have the matter transferred to the County Court. On 23 September the Defendants served Detailed Grounds of Defence, together with an application to extend time for service of those grounds.

Preliminary matters

[19]At the beginning of the hearing before me, the Claimant confirmed that the application in relation to the venue for this hearing was no longer pursued, given that the parties were now at a substantive hearing. Mr Ò Ceallaigh on behalf of the Claimant also said he was 'neutral' on the question of giving the Defendant a retrospective extension of time with regard to the Detailed Grounds of Defence. I gave the Defendant permission to rely on the Detailed Grounds served on 23 September on the basis that no specific sanction was put to me for failing to serve such grounds and it was in the interests of justice to have the Defendant’s submissions. However, as I expressed at the time, the failure to make any attempt to request permission for an extension of time or apparently to deal at all with the late service of the documents until shortly before the hearing was in blatant disregard of the rules. It will be right for me to take this conduct into account when it comes to deciding any issue of costs at the conclusion of the case.

Grounds of challenge

[20]The period of detention being challenged runs from 24 August 2015 to 21 September 2015. The grounds of challenge are twofold: i) Was the Claimant's detention unlawful as a result of a public law error bearing on the decision to detain? ii) Was the Claimant's detention unlawful in breach of the Dublin III Regulation (Regulation 604/2013)? iii) Also, what has to be decided is, if the Claimant's detention is unlawful, whether he is entitled to substantial or nominal damages. Ground 1 – Was the Claimant's detention unlawful as a result of a public law error bearing on the decision to detain?[21]The Defendant accepts that the Claimant's detention was unlawful for the period in question because the Defendant has been unable to produce detention reviews for this period of time. The Defendant accepts that the Claimant is entitled to a declaration that his detention in this period was unlawful following Kambadzi v SSHD [2011] 1 WLR 1299.[22]It is however agreed that where the Defendant can show a person would have been detained in any event then nominal damages, rather than substantial damages will follow. The question of whether a person would nevertheless have been detained is for the court to decide on the balance of probabilities (OM (Nigeria) v SS HD [2011] EWCA Civ 909). At paragraph 23

Lord Justice Richards stated:

“…It seems to me that on normal compensatory principles it would be for a Claimant to prove his loss on the balance of probabilities. It may well be that in circumstances such as these the burden shifts to the Defendant to prove that the Claimant would and could have been detained if the power of detention had been exercised lawfully, but again I see no reason why the standard of proof should be anything other than the balance of probabilities.”
[23]A breach of public law bearing on the decision to detain will give rise to a false imprisonment (Lumba v SS HD [2011] UKSC 12). It is necessary therefore for me to consider the Claimant’s submission that there was a further breach of policy at play in this case, namely a failure to follow chapter 55.10 of the Enforcement Instructions and Guidance (EIG). The Claimant’s submission is that the Claimant should never have been detained on 24 August 2015 because to do so was a breach of the EIG policy.[24]The relevant extract from the policy is as follows:
“Persons considered unsuitable for detention Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or prisons. Others are unsuitable for immigration detention accommodation because their detention requires particular security, care and control. … The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons: … those where there is independent evidence that they have been tortured. …”
[25]The Claimant submitted that there was clear independent evidence of torture, which was accepted by the Defendant in March 2015 and therefore the Claimant could only be detained in 'very exceptional circumstances' which was a high threshold. The Claimant's submissions were that there were no such circumstances and the Defendant never identified such circumstances. There is no evidence that the Defendant considered chapter 55.10 at all. Mr Staker submits that first, there is no causal link between the failure to conduct reviews and the continued detention. Secondly, he says that there is evidence that on a number of occasions throughout the period of detention the Defendant expressly applied her mind to whether or not the detention should be continued and decided that it should. Mr Staker also submitted that chapter 55.10 EIG had to be considered together with all the other provisions of the EIG. He said that the rule 35 report did not preclude the Claimant’s detention on 24 August 2015 and that a reasonable period of time should be afforded to the Defendant once she had become aware of the judicial review proceedings before deciding whether or not to release the Claimant, particularly in circumstances where the claim form was not served on the Defendant until sometime after it had been issued.[26]I have been referred to R (MD (Angola)) v SS HD [2011] EWCA Civ 1238. In that case chapter 55.10 of the EIG was considered in relation to another exceptional circumstance namely, those suffering from serious medical conditions. In considering the construction of the EIG Maurice Kay LJ stated at paragraph 14 as follows:
“… Although, as Sedley LJ observed when granting permission to appeal, we are not considering a statute, context and purpose remain important. The context is the use of the power to detain in order to effect a lawful removal. It generally arises where there is a risk that the person in question will abscond, fail to co-operate or resort to crime during anticipated short period prior to removal. The purpose is to ensure that the lawful removal of a person who has no right to remain in this country is not frustrated.”
[27]In R(ZS (Afghanistan)) v SS HD [2015] EWCA Civ 1137 Lord Justice Burnett in considering the interpretation of EIG, albeit a different provision from the one I am concerned with, set out some principles (at paragraph 24) for that interpretation as follows: i) It is for the court to determine the meaning of the policy; ii) It is not appropriate to subject the policy document to fine analysis in the same way as one would statute; iii) Care must be taken not to stray beyond interpretation into what is in substance policy formulation; iv) A pragmatic and purposive construction is what is needed; and v) Compliance with the policy limitations should be reviewed on Wednesbury grounds.[28]I was also referred to the case of R (Jayeola) v SS/HD [2016] EWHC 2335 (Admin). This case concerned a claim for unlawful detention and the interpretation of chapter 55.10 of EIG. In particular, whether there was independent evidence that the Claimant in that case had been tortured and whether there were 'very exceptional circumstances' that warranted his detention. At paragraph 30 Jonathan Swift QC, sitting as a Deputy High Court Judge, stated:
“If there is independent evidence, detention would (in accordance with paragraph 55.10 of the EIG) 'normally' be suitable 'only very exceptional circumstances'. In context, it does not seem to me that the use of the word ‘normally’ adds anything. Thus if there were independent evidence that the Claimant had been tortured in Nigeria his immigration detention would be contrary to the Secretary of State's policy unless there were very exceptional circumstances.”
[29]In my judgement the Defendant's decision on 24 August 2015 to detain the Claimant was lawful and not in breach of chapter 55.10 of EIG for the following reasons: i) The form completed by the Defendant's officers identified previous consideration of the torture allegation. This leads me to conclude that they were aware of the Rule 35 Report. The reasons given to the Claimant for his detention included reasons that made it likely that the Claimant would abscond such as not having close enough ties and failing to give satisfactory answers. Although they had not checked the box concerning previous absconding, information was available to them about the Claimant absconding from Switzerland. I take into account the fact that the Claimant had met the condition requiring him to attend Sandford House on a weekly basis. However, in the context of a proposed removal date of 2 September I am of the view that the Defendant reasonably could conclude that the threshold set of detention 'only in very exceptional circumstances' had been met because of the risk of the Claimant absconding, which given the history would reasonably be viewed as a significant risk. ii) Claimant's counsel accepted that detention prior to removal could amount to 'very exceptional circumstances' however he submitted it did not do so in this case because of the Claimant's history of torture and because of his conduct since his release from detention on 20 March 2015. I was told that some individuals do not abscond when they were given removal directions. However, as I have stated there was sufficient evidence taken into account by the Defendant's officers and it cannot be said that their decision was unreasonable or irrational. Even if it was, in my judgement, taking all of the circumstances into account including in particular the Claimant's history of absconding from Switzerland, on a balance of probabilities, the Defendant would and could have detained the Claimant on 24th August 2015 in any case and that would have been lawful for the reasons I have already given.[30]The Defendant has established in these circumstances that notwithstanding the failure to conduct detention reviews that the Claimant would on the balance of probabilities have been detained in any event.[31]However, it is necessary for me to go on to consider whether or not the Claimant's detention remained lawful from 24 August 2015 onwards and if it did not, at what point it became unlawful. Mr Staker drew my attention to various parts of EIG and I think it is important to note that I do not think it relevant to consider those parts of that policy document which relate to those who have committed crimes. There is no evidence that the Claimant in this case was an offender. I am also of the view that for the reasons I have given above until the Defendant took the decision to cancel the removal directions on 1 September 2015 the Claimant's detention was lawful. The question to be determined is having decided to cancel the removal directions such that the removal was not imminent was is it lawful to continue to detain the Claimant in those altered circumstances?[32]It might have been lawful for the Defendant to take a reasonable period of time to consider whether or not she would apply to expedite the judicial review hearing so that it could be said the Claimant's removal was still imminent. Mr Staker made this point to me. However, in this case there is no evidence of the Defendant taking such a step. Although the Defendant did not have the judicial review claim form they did not make any attempt to obtain it, even an unsealed version, which would have it seems to me have been the case if there had been any realistic intention to expedite any judicial review application.[33]The evidence is that the Defendant wanted to maintain the detention but there is no indication about why she wanted to maintain the detention. In my judgement there is no distinction between the circumstances in March 2015 and after 1 September 2015 once the question of imminent removal has been removed. In fact the evidence is more in the Claimant’s favour as the Claimant previously complied with his conditions and therefore was less likely to abscond once the threat of imminent removal was removed. There is independent evidence of torture and it seems to me that the 'very exceptional circumstances’ no longer exist. In my judgment a decision to maintain detention in those circumstances was inconsistent with the EIG policy and therefore unlawful.[34]The question arises as to whether the Defendant should properly be given a reasonable period of time to consider what to do in light of the change of circumstances. I note paragraphs 118-120 of R(BA (Eritrea) v SSHD [2016] EWCA Civ 458. There is no evidence that any serious consideration was being given to doing anything apart from waiting for the service of the claim form. However, I am satisfied that the Defendant would, on the balance of probabilities, if acting reasonably have taken time to consider the position and in my judgement a period of seven days would be reasonable in this case before the Claimant was released from detention. I based this time period on giving an allowance for the Defendant to consider the position in light of the judicial review application and to make an attempt to obtain the papers and to take advice on the position and make arrangements for the claimant’s release. I do not find it would be realistic to expect immediate release on 1 September 2015. Accordingly, I find that from 8 September 2015 the Claimant was unlawfully detained and is entitled to substantial damages from that date until his ultimate release on 21 September 2015.[35]I do not accept submissions made by Mr Staker that the Defendant ought not to be obliged to take any steps to consider whether or not to release the Claimant until service of the claim form on 15 September 2015 and even then be given a reasonable time thereafter to consider whether or not the Claimant should have been released. First, the Claimant's solicitor’s fax of 1 September 2015 clearly puts the Defendant on notice of what the issues were and there had been substantial correspondence beforehand including pre-action correspondence covering the issues. Secondly, I think there is evidence that the Defendant's officers were under the mistaken apprehension that the judicial review proceedings were invalid (see paragraph 13 above). Thirdly, the Defendant should have reviewed the circumstances within a reasonable time and obtained any necessary documentation as a matter of priority, even in draft. Ground 2 - Was the Claimant's detention unlawful in breach of the Dublin III Regulation (Regulation 604/2013)?[36]The relevant extract from the Dublin III regulations is as follows:
“‘SECTION V Detention for the purpose of transfer Article 28 Detention”
Detention for the purpose of transfer Article 28 Detention” 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.’

Detention for the purpose of transfer

[37]Article 2 contains the definitions and the material one is reproduced below:
“(n) risk of absconding’ means 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.”
[38]Mr Ò Ceallaigh submits that the Claimant’s detention was unlawful from 24th August as first, Article 28 has Direct Effect and his detention was in breach of that Article. Secondly, the Defendant has failed to implement Article 28 into domestic law. Mr Staker relies upon two decisions concerning article 28. First, R (Khaled) (No 2) v SSHD [2016] EWHC 1394 (Admin) and secondly, R (Abdulkadir) v SSHD (2016] EWHC 1504 (Admin) decisions of Mr Justice Garnham and Mr Justice Irwin respectively. Mr Staker says that on the basis of judicial comity I should follow Khaled. Mr Ò Ceallaigh submits first, that Mr Justice Garnham wrongly decided Khaled and secondly, that the principle does not apply where there are two relevant first instance decisions which conflict.[39]In R v Greater Manchester coroner ex parte Tal [1985] QB 67 at page 81 paragraph A Goff LJ states “… the principle applicable in the case of a judge of first instance exercising the jurisdiction of the High Court, viz., that he will follow a decision of another judge of first instance, unless he is convinced that that judgement is wrong, as a matter of judicial comity… ” The same test of being convinced that the judge was wrong was relied upon in Lornamead Acquisitions Ltd v Kaupthing Bank HF [2011] EWHC 2611 (Comm) to which I was also referred.[40]Khaled concerned nationals of Afghanistan, Iraq or Iran. The Claimants made asylum claims in the United Kingdom but Bulgaria was the appropriate country under the Dublin III Regulation to determine the asylum claims. The Claimants alleged that they had been unlawfully detained at various periods. One of the issues to be decided was whether Article 28 had direct effect. Mr

Justice Garnham concluded at paragraph 69:

“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.”
[41]Notwithstanding Mr Ò Ceallaigh’s submissions I am not convinced that Mr Justice Garnham’s decision was wrong for the following reasons: i) Mr Ò Ceallaigh put to me that the intention of the Regulation was to create more protections for individuals. This was accepted and acknowledged in the Judgment. It was also taken into account that some of the Articles in the Regulation may have direct effect, depending upon their construction; ii) The conclusion that existing national laws create a frame work for detention in parallel to Article 28 does not seem to me to be convincingly wrong, nor the conclusion that the wording of the Article is not sufficiently clear to create direct rights. iii) The preliminary decision of Advocate General Sharpston considering the interpretation of Article 27 in Ghezelbash [2016] WLR(D) 301 and in Karim [2016] EUECJ C-155/15 were before the Judge. I have considered the final decisions which, as the Advocate General concluded, confirm that Article 27 is of direct effect. As I have said the Judge took those preliminary conclusions into account and the direct effect of Article 27. I do not believe the final decision alters the position.[42]I was referred to a Swedish reference to the Court of Justice of the European Union in Mohammed Khir Amayry v Migrationsverket Case C-60/16. The reference includes an assumption that Article 28 is directly effective. I do not see how that helps me one way or the other on whether or not the decision is convincingly wrong. There is obviously the possibility of different conclusions on Article 28. Mr Justice Garnham has set out the law on this Article and the fact that there are different views does not make the conclusions reached convincingly wrong. The Judge reached his conclusions based on the interrelationship between Article 28(1), 28(2) and 28(3) and having considered them carefully and the reasoning at paragraphs 63 to 66 in particular I am not convinced the decision is wrong.[43]Accordingly, I do not need to consider any direct effect of Article 28 nor any alleged failure to implement Article 28 as the Claimant was detained under existing national laws.[44]Mr Ò Ceallaigh says that as there is a conflict between the decisions of Khaled and Abdulkadir I do not need to follow Khaled. I do not believe that there is a conflict as Mr Ò Ceallaigh’s suggests for the following reasons: i) It was not argued before Mr Justice Irwin that Artcile 28 was directly effective, it was assumed to be the case. At paragraph 122 of the Judgment the Judge states:
“For present purposes, I make the assumption that, in respect of a given asylum seeker, the provisions of Article 28 apply to detention once there has been a decision to seek to return the individual pursuant to Dublin III. Before that decision is taken, it is difficult to see how any specific obligations set out in Article 28 arise. During that period, it appears to me the relevant law is that which would apply to any illegal entrant with no right to remain whom it was intended to remove.”

Mr Justice Irwin included a post script to the judgement at paragraph 151 as follows:

“Later in the day (21 June) when this judgment was sent to the parties under embargo, I was supplied by the Defendant with the judgment of Garnham J in Khaled v SSHD No 2 [2016] EWHC 1394 (Admin), handed down on 15 June 2016. In the course of his judgment, Garnham J addressed the questions whether Article 28 of Dublin III (1) has direct effect and (2) abolishes 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 on whatever lawful means are available to the Defendant": paragraph 65. This issue appears to have been argued in a rather different way, and perhaps more fully, before Garnham J. However, I am fortified in my conclusions on Article 28 by the approach of Garnham J, culminating in his conclusions in paragraph 69 of the judgment in Khaled (No 2) [that being the paragraph I have quoted above].”
[46]I simply do not think it is correct to say that these are two conflicting decisions. The point was not argued in Abdulkadir on the question of whether Article 28 was of direct effect. Accordingly, I do not accept Mr Ò Ceallaigh’s submissions on this point.[47]Given the conclusions that I have reached on these two cases, I reject the Grounds of Challenge based under Article 28. However, even if that is wrong, I do not think it adds anything on the facts of this case to the outcome. I have said already, the risk of absconding would reasonably be viewed as significant until 1st September 2015 and I am of the view that the Claimant would have been detained in any event, as I have already stated and not thereafter. The conclusion would be the same under either ground.

Conclusion

[48]The Claimant was unlawfully detained from the 24 August 2015 until his release on 21 September 2015. However, I have concluded that, if procedures had been properly followed, he would have been lawfully detained in any case until 8 September 2015. It therefore follows that only nominal damages are payable between 24 August and 7th of September but substantial damages are payable from 8 September until 21 September 2015.