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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> QH (Afghanistan) v Secretary of State for the Home Department [2022] EWCA Civ 421 (01 April 2022) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2022/421.html Cite as: [2022] EWCA Civ 421, [2022] INLR 243 |
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Formerly C2/2021/0202 |
ON APPEAL FROM
The Upper Tribunal (Immigration and Asylum) Chamber
(Upper Tribunal Judge Coker
Upper Tribunal Judge Keith)
JR/221/2018
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE ASPLIN
and
LADY JUSTICE ELISABETH LAING
____________________
QH (AFGHANISTAN) |
Appellant/ Claimant |
|
- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent/Defendant |
____________________
Gwion Lewis QC (instructed by Government Legal Department) for the Respondent
Hearing dates: 22 February 2022
____________________
Crown Copyright ©
Lady Justice Elisabeth Laing :
Introduction
i. on 9 April 2017 to remove him from the United Kingdom ('decision 1')
ii. on 30 March 2017 to certify his asylum claim on third country grounds ('decision 2')
iii. on the same date to certify his human rights claim as clearly unfounded ('decision 3') and
iv. to refuse to request A's return to the United Kingdom from Germany ('decision 4').
i. a declaration was just satisfaction for the admitted breach of A's private life rights caused by his removal to Germany and
ii. the breach of EU law which was admitted by the Secretary of State was not sufficiently serious to entitle A to an award of 'Francovich' damages (Francovich v Republic of Italy (Cases C-6/90 and 9/90) [1993] 2 CMLR 66).
Popplewell LJ refused permission to A to argue that the Secretary of State had breached his article 8 rights to respect for his family life, and to argue that the UT erred in law in its approach to costs.
The background
A's application for judicial review
i. It was a breach of the Secretary of State's relevant policy.
ii. It was a breach of articles 27(1) and 27(2) of the Dublin III Regulation (see paragraphs 74 and 75, below).
iii. It was a breach of article 6 of the Dublin III Regulation, which provides that the best interests of a child 'shall be a primary consideration' (article 6.1) and that member states must closely co-operate with each other, listing the factors of which they must, in particular, take due account. Those include family reunification possibilities, the minor's wellbeing and social development, safety and security considerations, and the views of the minor (article 6(2)).
iv. It was a breach of article 8.2 of the Dublin III Regulation, which applies when the applicant is a unaccompanied minor who has a relative living in another member state, and who, it is established, based on an individual examination, can take care of him. It requires the member state to unite the minor with that relative, and stipulates that that member state shall be the member state responsible, provided that is in the best interests of the minor.
The decisions of the UT on the application for judicial review
i. The decision to remove A was actually made on 3 April 2017. The accompanying notice said that A was not to be removed until 10 April, but he was not served with the notice until 9 April (paragraph 6).
ii. The Secretary of State did not follow his own instructions and guidance (Chapter 60 of the Enforcement Instructions and Guidance) in removing A. This was said to be 'an administrative error' but there was 'no evidence substantiating this proposition'. The Secretary of State conceded that the lack of notice was a breach of article 27.1 and 27.2 of the Dublin Regulation. A's removal was unlawful (paragraph 8).
iii. Section 15(5) of the Tribunals Courts and Enforcement Act 2007 ('the 2007 Act'), which applies section 31(2A) of the Senior Courts Act 1981 to the UT, was not a reason for refusing relief. It could not be said that the outcome for A would not have been substantially different if he had not been removed when he was. The Secretary of State should have realised that the age assessment by Lincolnshire County Council was flawed, and the UT would have held that decision 1, which was based on that age assessment, was also flawed (paragraphs 13-18).
iv. The NFDFU was not able to point to any feature of the Taskera which suggested that it was bogus. It had no similar document which was known to be genuine with which to compare it. The assessment of its authenticity was 'inconclusive'. The third country unit reported that outcome to the litigation section thus: 'Document are not found to be genuine following a document examination'. The UT would have considered that the Secretary of State's approach to the Taskera was flawed (paragraphs 19-20).
v. Decision 1 would not have survived 'proper scrutiny' (paragraph 21). The UT would have quashed all the decisions which were based on the premise that A was an adult. The Secretary of State would have been required to use his best endeavours to return A to the United Kingdom in order for there to be a hearing of a challenge to the age assessment (paragraph 22).
vi. Delay was not a reason for refusing relief (paragraphs 23-24). Nor was the fact that A was now an adult (paragraph 25).
The UT's determination of A's age
The issues for the UT at the September hearing
i. Was an award of damages necessary to give A 'just satisfaction' for the breach of A's article 8 rights (whether private, or family life)?
ii. Was A entitled to Francovich damages? The Secretary of State conceded, both, that article 27 of the Dublin Regulation conferred rights which were enforceable by an individual, and that there was a causal link between her breach of A's rights and the damage A suffered. The sole issue, therefore, was whether the breach was 'sufficiently serious'.
iii. If an award of damages was appropriate under either head, how much should be awarded?
The reasoning of the UT on the damages claims
1.Article 8
(1) Did A have family life with D?
(2) Was the UT satisfied that an award of damages was necessary to afford just satisfaction to A?
32. The period of absence was 'not insignificant' but a lot of the delay had to 'seen in the context of the pre-action litigation and the…judicial review proceedings' (paragraph (92)). There was a 'notable lack of urgency on the part of those representing [A] to seek enforcement of his immediate return' (paragraph (93)). The UT referred, in paragraph (94), to a dispute between A's solicitors and Secretary of State for the Home Department about disclosure. A's solicitors repeatedly ignored the Secretary of State's advice to make a subject access request. They had not explained why they had never made such a request. A's solicitors stopped asking for disclosure of the Council's age assessment after the positive German age assessment of 21 August 2017 (paragraph (95)).
2. Francovich damages
i. A's right to respect for his family life was not engaged by the Secretary of State's unlawful actions.
ii. A's removal breached A's right to respect for his private life and his right under article 27 of the Dublin III Regulation.
Submissions
i. The Court must take into account the 'principles' applied by the European Court of Human Rights ('the ECtHR') when deciding whether to award damages.
ii. The facts must be assessed 'equitably'.
iii. There is no right to compensation. A court will only award it when it is necessary to provide just satisfaction.
iv. The ECtHR tries, so far as possible, to put the applicant in the position he would have been in if the requirements of the Convention had been complied with.
v. There must be a causal connection between the loss/damage and the relevant violation of the Convention which is appropriately reflected in an award of compensation as well as a declaration.
vi. The violation must be of a type which should be reflected in an award of damages.
vii. The ECtHR has a 'broad brush' approach to compensating non-financial loss.
i. in not taking into account the Secretary of State's refusal to engage with A's case over many months, and his insistence that A had to engage with the German authorities,
ii. in holding against A that the Secretary of State had delayed A's return by insisting on that approach,
iii. in not holding against the Secretary of State his insistence that A use the unsuitable process of making a subject access request,
iv. in treating A's failure to challenge the Council's age assessment as relevant to article 8 or Francovich damages; no public authority could reasonably have relied on that assessment, and
v. in blaming the delay on A's legal representatives.
The law
Francovich damages
i. The result prescribed by the directive should entail the grant of rights to individuals.
ii. The content of those rights should be identifiable from the terms of the directive.
iii. There must be a causal link between the breach of state's obligations and harm suffered by individuals.
63. In paragraph 55, the Court of Justice re-stated the test it described in paragraph 45. It added that it was 'the decisive test for finding that a breach of Community law is sufficiently serious whether the member state…manifestly and gravely disregarded the limits on its discretion'. The factors which a competent court may take into account are 'the clarity and precision of the rule breached, the measure of discretion left by that rule to the national …authorities, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable; the fact that the position taken by a Community institution may have contributed towards the omission, and the adoption or retention of national measures or practices contrary to Community law'(paragraph 56). 'On any view' a breach will always be sufficiently serious if it has persisted despite judgment finding an infringement or a preliminary ruling, or settled case law from which it is clear that it is an infringement (paragraph 57).
64. In paragraph 58 the Court of Justice said that it was for the national court to decide whether there was a sufficiently serious breach. It added, in paragraph 67 that '…the state must make reparation for the consequences of the loss and damage caused in accordance with domestic rules on liability, provided that the conditions for reparation of loss and damage laid down by national law must not be less favourable than those relating to similar domestic claims and must be not be such as in practice to make it impossible or excessively difficult for individuals to exercise their right to reparation, as guaranteed by Community law, of loss and damage resulting from the breach of Community law'.
Article 27 of the Dublin III Regulation
Discussion
Damages under the HRA
Francovich damages
Conclusion
Procedural issues
Lady Justice Asplin
Lord Justice Peter Jackson