The Court of Appeal has recently delivered something of a landmark judgment, of interest to all immigration lawyers concerning the detention of Asylum seekers under the Dublin III regulations, and could lead to the payment of damages to many more who have experienced false imprisonment by the UK immigration authorities. With concerns around immigration bail in 2018 never far from the headlines, London immigration solicitors will recognise that Hemmati & Others has potentially far-reaching consequences for others in detention pending removal to another EU state. The case is also the first to examine the relevant provisions of the Dublin III Regulations against the UK’s detention regime, against the background of the CJEU decision in the case of Al Chodor.
Dublin III (Regulation 604/2013) is familiar to immigration appeal solicitors handling Asylum and immigration bail cases regularly. It is the latest version of EU Regulations designed to set up a system for determining, as between EU states, which of those states should handle an Asylum claim. Using a fingerprinting database to establish which member state an Asylum seeker first claimed protection, Dublin III not only makes provision for the Asylum seeker to be returned to where he or she first claimed Asylum in the EU, but also (unlike its predecessor Regulation Dublin II) introduces protections for Asylum seekers who fall under the Regulation.
Detention and Dublin III
Article 28 of Dublin III makes it clear at A28(1) that an Asylum seeker should not solely be held in detention because he or she falls within the Regulation (i.e. has claimed Asylum in an EU state but has made an earlier claim in another EU state and is to be removed). Article 28 goes on to indicate that where there is a risk that the individual will abscond, detention ‘to secure transfer procedures’ is acceptable so long as detention is ‘proportionate’ and there are no other less effective measures available.
Risk of absconding is defined in Article 2(n) as "…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.”
The Secretary of State’s Enforcement Instructions and Guidance (EIG) came under scrutiny in this case, as the Court of Appeal had to consider if, in light of the CJEU’s decision in Al Chodor detention the EIG and/or Hardial Singh principles satisfied the requirements of Dublin III in respect of detention.
The Court of Appeal were considering these questions against the background of 5 different cases. In 4 of those cases, determined before the Al Chodor decision, claims for false imprisonment by the detained individuals had failed. In the fifth case, SS, determined by the court below after the Al Chodor decision, the appellant was the Secretary of State, appealing against the court’s decision in that case to allow the claim of false imprisonment.
All the Applicants had entered the EU and claimed Asylum, then travelled onwards to arrive clandestinely in the UK and claim Asylum again. Although the relevant documentation issued to the individual applicants regarding their detention did not, in most cases, specify that a risk of absconding had been identified, evidence was given to the court that this was indeed the reason for detention in most cases, pending removal to the EU state where Asylum had first been claimed.
Questions in the courts below arose as to whether the individuals were detained because of the risk of absconding, or because they were due to be removed under Dublin III. The interpretation of Article 28 and Article 2(n) and the use of the EIG and Hardial Singh principles in the context of detention was clearly in issue – and as the Court of Appeal remarked, it was the first time the EIG has come under judicial scrutiny in this way despite it being applied in thousands of cases.
Consideration of the case
There were a number of assumptions agreed as between the parties which lead the Court of Appeal to conclude that certain issues would need to be examined at a future date based on a clearer set of individual facts. For the issues in question in the case before them it reached the following conclusions:
- In light of the decision of the CJEU in Al Chodor it was clear that when someone was detained under Article 28 because there was a significant risk that he would abscond, the EIG does not have the necessary ‘clarity, predictability, accessibility and protection against arbitrariness "within a framework of certain predetermined limits" required…”.
- Although, by the end of the hearing, it was not disputed that the Hardial Singh principles did not meet the requirements set out in Al Chodor, but for the avoidance of doubt, the Court of Appeal confirmed that these principles are “…no more than applications of two elementary propositions of English law: first, that compulsory detention must be properly justified, and, secondly, that statutory powers must be used for the purposes for which they are given. They are certainly not criteria defined by law for the purposes of Article 2(n)…”
- The correct test for damages for false imprisonment is not the ‘sufficiently serious breach’ test set out in Factortame, but the domestic test under a common law action for false imprisonment – the fact of imprisonment, and the absence of lawful authority for that imprisonment.
It’s interesting to note that the Secretary of State conceded that Article 28 has direct effect.
The case has clear implications for hundreds of Asylum seekers detained pending their removal to another EU state under Dublin III and who may now be able to bring similar actions for false imprisonment. For advice and assistance, please call us on 0203 959 9123.
OTS Solicitors are Legal 500 recommended immigration and human rights lawyers with many years’ experience handling immigration bail and appeals against detention in immigration matters. For anyone concerned about the impact of Dublin III on their immigration status in the UK, we can offer practical advice and support to help you resolve your immigration issue effectively.
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Posted on: Tuesday, 09 October, 2018