In November, two important judgments were handed down concerning the legal regime governing immigration detention under the Dublin III Regulation; one by the Supreme Court and one by the High Court. This two part blog summarises the key findings and considers the impact of these cases. Part I considers the findings of the Supreme Court in Hemmati. See here for Part II, which looks at the High Court judgment in Ismail and the relevance of the decisions for future cases.

R (Hemmati and others) v Secretary of State for the Home Department [2019] UKSC 56 (‘Hemmati’)

R (Ismail) v Secretary of State for the Home Department [2019] EWHC 3192 (Admin) (‘Ismail’)

Dublin III Regulations

The European Parliament and Council Regulation (EU) No 604/2013 of 26 June 2013 (‘Dublin III’) is the codification of the criteria and mechanisms for determining the European Union (‘EU’) Member State responsible for examining asylum claims lodged in one of the Member States by a third-country national or a stateless person. Dublin III permits, subject to strict safeguards, the detentions of asylum seekers. In Hemmati and Ismail, the Courts were concerned with the interactions of those safeguards with the power to detain persons for immigration purposes under domestic (UK) law.

Hemmati and others

Hemmati concerned five cases of individuals (‘the Respondents’) who had entered the UK clandestinely; claimed asylum; and were detained. Enquiries revealed that the Respondents had each travelled to the UK through other EU Member States, in which they had also claimed asylum. In accordance with Dublin III, the Home Office requested that the respective States took responsibility for examining the asylum claims. The Respondents claimed their detention had not been in compliance with the safeguards of Dublin III and, therefore, had been unlawful, and damages were payable.

The Supreme Court was tasked with determining whether their detention was lawful, given that Article 28 of Dublin III permits detention only where there is a “significant risk of absconding”.  This risk is defined in Article 2(n) as the existence of reasons in an individual case, based on objective criteria defined by law, to believe that the person might abscond. If the detention was indeed unlawful, the Court was also required to decide whether damages were payable either under domestic law for false imprisonment or pursuant to an EU law approach.

The Supreme Court unanimously followed the majority decision of the Court of Appeal, which relied on the approach to Article 28 and 2(n) of the Court of Justice of the EU (‘CJEU’) in Al Chodor (Case C-528/15), issued on 15 March 2017. The CJEU had held that to comply with Dublin III, the domestic law measures relied upon for detention had to have the requisite legal basis and the safeguards of clarity, predictability, accessibility and protection against arbitrariness within a framework of certain predetermined limits (Al Chodor, paras 40 – 5). Since neither the common law (i.e. Hardial Singh) principles nor the Home Office’s published policy satisfied these requirements, the detention of all of the Respondents was held to be in breach of Article 28.

The Court clarified that the power to detain those who are subject to a Dublin III procedure is conferred, not by Dublin III, but by Schedule 2 to the Immigration Act 1971. That power to detain is constrained in various ways, including by (i) the Hardial Singh principles; (ii) the policy-adherence principle; and (iii) the provisions of Dublin III. The Home Office’s policy did not comply with Articles 28(2) and 2(n) of Dublin III with the consequence that, in the case of each of the Respondents, the decision to detain lay outside the scope of any legitimate exercise of the discretion conferred by the 1971 Act. In these circumstances, the two ingredients of the tort of wrongful imprisonment were undoubtedly present and the Respondents were entitled to damages under domestic law for false imprisonment.

Finally, in rejecting the Secretary of State’s argument that only nominal damages should be awarded, the Court emphasised the importance of a person’s entitlement to know what the law (and any policy made under it) is: “[i]t can be no answer to a claim for damages for unlawful imprisonment that the detention would have been lawful had the law been different ”.