QH (Afghanistan) v Secretary of State for the Home Department [2022] EWCA Civ 421 (01 April 2022)
The Court of Appeal has held that a mere declaration was not just satisfaction for the SSHD's admitted violations of the rights—pursuant to article 8 of the ECHR—of a minor Afghan asylum seeker caused by his removal to Germany and instead the admitted breach of article 27 of the Dublin III Regulation on the criteria for determining the Member State responsible for examining an application for international protection by a third-country national or a stateless person had indeed been sufficiently serious to entitle him to Francovich v Republic of Italy (Cases C-6/90 and 9/90) [1993] 2 CMLR 66 type damages. "A", the appellant, was born in Afghanistan. His uncle "D" who moved to the UK, was granted asylum and became British in 2008. The appellant left Afghanistan in 2015. He first went to Greece, then to Germany, and entered the UK in April 2016 where claimed asylum. He said he was 16, claiming that he seen his father being murdered, that his brother had also been murdered, and further that he had himself been kidnapped and tortured. But his age was assessed as 19. A found D and stayed with him, but made a stronger connection with his support workers. He was so traumatised by his terrible experiences in Afghanistan that in May or June 2016 he tried to commit suicide. He had provided the SSHD with an Afghani identity document showing that he was born in 2000.
Germany accepted responsibility for him under Dublin III. In April 2017 he was detained and a decision was made to remove him to Germany. He was removed just two days after being given notice of that decision. He claimed that he had been unlawfully removed, that he was a disputed minor and that his mental health had declined since he got to Germany and that his removal was a breach of Dublin III and government policy about removal in third country cases. At the time of his judicial review claim in October 2018, A was still in Germany and the judge found that the SSHD had unlawfully removed him without proper notice and in breach of policy. The SSHD conceded that the lack of notice had breached article 27 of Dublin III. So the judge quashed the removal decision, as well as decisions certifying as clearly unfounded the appellant's asylum claim on third country grounds and his human rights claim, ordered the appellant's return and required him to particularise his damages claim. In May 2020 the UT decided that A was born in 2000—meaning that he was a child when he was removed. It later decided that he had not had a family life with D when he was removed, but that his removal had breached his right to a private life and article 27 of Dublin III. However, the breach was not held sufficiently serious to warrant Francovich damages.
In R v Secretary of State for Transport ex p Factortame Limited (No 5) [2000] AC 524, the House of Lords considered whether the United Kingdom was liable to pay damages to the applicants in that case. The Divisional Court and the Court of Appeal had both held that the Secretary of State was liable. The House of Lords agreed. The issue was whether the breach in question was "sufficiently serious".
The rule in Francovich provides a cause of action in damages against an EU Member State breaching EU law and Paragraph 4 of Schedule 1 of the European Union (Withdrawal) Act 2018 provides that there is generally no right in domestic law to damages in accordance with the rule in Francovich as a consequence of Brexit.
The Court of Appeal
Allowing the appeal, the court said that the "suggestion that A, a vulnerable child, could have challenged his removal in the course of one working day is … ridiculous." Elisabeth Laing LJ first examined human rights damages and then looked at Francovich damages.
(i) Human rights damages
Elisabeth Laing LJ said that understood that the interference with A's private life rights was very significant. Her Ladyship noted at paragraph 77 that he had been a vulnerable child who was trying to establish a relationship with his British uncle D — and whose relationships with his support workers were very important.
He was suffering from mental ill-health and felt that he was living a half-life in Germany. He was separated from his few friendships and his support network for about 19 months. That was not a technical procedural breach of article 8. On the face of it, damages were necessary to provide the appellant with just satisfaction. The question was whether the UT had been entitled to dilute those factors by criticising the conduct of A's solicitors, and by relying on the conflict between the relevant authorities about how to resolve the dispute about his age, and on the complexity of the procedures involved. In that regard, Elisabeth Laing LJ held that:
79. I consider that the UT erred in principle in at least two significant respects.
80. First, whether a young person is a child or not is a question of fact for the court, even in a context governed by public law (see R (A) v Croydon London Borough Council [2009] UKSC 8; [2009] 1 WLR 2557). The UT had assessed A's age. That finding was not simply a forward-looking assessment. The legal consequence of that finding was that A was, and should have been treated as if he was, a child, both when he was removed, and for some months after that, until he reached the age of 18. The Secretary of State acted unlawfully in removing A, because he was a child (and because he was not given reasonable notice of his removal). The fact that the Secretary of State did not then know that A was a child is immaterial, as is the fact that the Secretary of State relied on the Council's age assessment.
81. Second, I consider that the UT erred in principle in attributing to A's solicitors any responsibility for the length of the disruption of A's private life, and in attributing the length of that disruption to the complexity of the procedures for sorting things out. A's solicitors wrote many pre-action protocol letters to the Secretary of State, pointing out that the Secretary of State had acted unlawfully by removing A. It turns out that they were correct. It is irrational to blame them for not starting proceedings sooner, when the Secretary of State could, at any time, have brought that disruption to an end by correcting his unlawful act and returning A to the United Kingdom.
82. Not only did the UT err in principle in refusing to award damages, but, I consider, the only conclusion which was open to the UT in this case was that an award of damages was necessary to afford just satisfaction to A. The dispute about whether A's removal was an interference with his family or private life rights, was, in this case, an arid distraction.
The Court of Appeal observed that A had fled Afghanistan and that he was a troubled and distressed child. He had suicidal tendencies and had tried to kill himself. The gradual, and no doubt difficult, development of a relationship with D—and his relationships with his support network—could not have been more important to him, and not least to his mental stability. As a consequence of A's unlawful removal, all his relationships with his support network were disrupted for many months. His distress at the time was well documented and the court said that it must assume that A's relationship with D was not family life for the purposes of article 8, but it was, nevertheless, the closest thing to family life which he had in Europe and it—and his relationships with his support network were, in any event, private life which to which very significant respect was due.
(ii) Francovich damages
Next, the Court of Appeal examined the issue of Francovich damages and observed that the sole provision of EU law on which the appellant had relied in the UT was Dublin III, article 27. He had been notified on a Sunday about a removal window that began the next day, so he was not even given one working day's notice. In fact he was removed on the Tuesday, so he had what transpired to be one working day's notice. The SSHD could not argue that that was reasonable, given her own policy. Elisabeth Laing LJ held that:
83. … In the event, A was removed on 11 April, so he had what turned out to be one working day's notice of his actual removal. The Secretary of State cannot be heard to argue that the notice she gave in this case was reasonable, given the terms of her own policy. There might be scope for argument about whether the five working days' notice for which her policy provides is, as a matter of EU law, reasonable notice. There is no scope for any such argument here. This case is not about the outer edges of what might be considered to be reasonable notice. No one, not even the Secretary of State, suggests that one working day's notice (or even less) was reasonable notice. On the facts, it could not be clearer that, by removing A on 11 April 2017, the Secretary of State breached article 27.2.
The court considered Brasserie du Pêcheur SA v Federal Republic of Germany and R v Secretary of State for Transport ex p Factortame (No 4) C-46/93 and C48/93 [1996] QB 404 and observed that the instant case was not about policy issues, or a broad power to legislate within boundaries set by EU law. The court did not consider that this is a case in which the SSHD had any relevant discretion. The rule of EU law was clear, at least at its inner margin, and the SSHD violated it by giving notice which was unreasonably short. The error of law was not excusable. Nor had it been explained by any evidence and the SSHD did not adduce any evidence at the UT, inviting the UT, instead, to infer that A's removal was the result of "an administrative clerical error". Elisabeth Laing LJ said that A's removal was not an accident. She said that "it was a deliberate act" and decided that:
85. … For the reasons I have already given, I consider that, in this case, there was no relevant lack of clarity in article 27.2. The suggestion that A, a vulnerable child, could have challenged his removal in the course of one working day is, I am sorry to say, ridiculous. Article 27 is concerned with an effective remedy to challenge a removal decision before a person is removed. It follows that an injunction after removal is not, for the purposes of article 27, an effective remedy. The fact that A had been told about the outcome of the Council's age assessment is nothing to the point, as was the fact that A had not challenged it. The UT's approach, again, was to try to exonerate the Secretary of State by applying public law principles to the decision-making about A's age. The factual and legal position, as a result of the UT's own assessment of A's age, was that A was, at all material times, and, in fact, a child, and should have been treated as a child. Moreover, the Secretary of State was given many opportunities, over several months, to return A to the United Kingdom, and did not do so.
86. On these facts, for those reasons, it was not open to the UT to hold that this breach of EU law was not sufficiently serious. A is, therefore, entitled to Francovichdamages.
Comment
The facts of this interesting case are clear that the SSHD showed no respect for the rights of a vulnerable Afghan child who was suicidal. The removal machine showed no mercy to him and sent him into a half-life in Germany so that he could suffer. The UT acquiesced in his victimisation by suggesting that he could have challenged his removal in the course of one working day which was ridiculous. Clearly, this was the UT siding with the SSHD just for the sake of siding with the government and it had made its decision in a confused way, conveniently aligning itself with the SSHD against a vulnerable Afghani child. More must be done for Afghanistan's children of war.