The Court of Appeal held that the detention of five asylum seekers pending deportation to other Member States had been unlawful as neither the secretary of state’s “Enforcement Instructions and Guidance” published at the relevant time, nor the Hardial Singh principles contained in R v Governor of Durham Prison Ex p. Singh [1984] 1 WLR 704 had satisfied the requirements of Regulation 604/2013 arts 2(n) and 28. The fundamental human right to freedom and liberty did not exist because of EU law or the ECHR, it was the common law that provided the remedy for an infringement, whether by an action for habeas corpus or for damages.
Hugh Southey QC was involved in this case.