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 II looks at the High Court judgment in Ismail and the relevance of the decisions for future cases. See here for Part I, which summarises the key findings of the Supreme Court in Hemmati.
R (Hemmati and others) v Secretary of State for the Home Department  UKSC 56 (‘Hemmati’)
R (Ismail) v Secretary of State for the Home Department  EWHC 3192 (Admin) (‘Ismail’)
The material facts in Ismail were broadly similar to those in Hemmati: the Claimant had entered the UK clandestinely; claimed asylum; and was detained. Enquiries revealed that he had travelled to the UK through other European Union (‘EU’) Member States; in some of which he had also claimed asylum. In accordance with Regulation (EU) No 604/2013 (‘Dublin III’), the Home Office requested that the respective States took responsibility for examining the asylum claim.
Notably different to Hemmati, however, was that the Claimant’s detention had commenced later, in May 2017. This meant that his detention took placed after the Transfer for Determination of an Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017 (SI 2017/405) (‘the 2017 Regulations’) were made. The 2017 Regulations were adopted on the day the judgment of the Court of Justice of the EU (‘CJEU’) in Al Chodor (Case C-528/15) was issued (see Part I for details), purportedly to ensure compliance with that decision. Accordingly, unlike to the Home Office’s policy which was reviewed in Hemmati, the 2017 Regulations were arguably consistent with Dublin III.
The Claimant’s submission was that his detention fell within the scope of Article 28 of Dublin III and, since he had not been detained because of a significant risk that he would abscond, it had been in violation of Dublin III and the 2017 Regulations and, thus, unlawful.
In her judgment, issued a day before Hemmati, Ms Margaret Obi (sitting as a Deputy High Court Judge) deferred to the approach of the CJEU in Al Chodor, as the Court of Appeal had done in Hemmati. In particular, she held that it would be inconsistent with the “high level of protection” of Dublin III, if States were able to circumvent the restrictions in Article 28 by relying on domestic provisions for purposes which include detention to secure transfer to another State in accordance with Dublin III.
Ms Obi concluded that the exercise of any power to secure transfer in accordance with Dublin III must comply with Article 28. Moreover, she found that, as a matter of both principle and fact, the Claimant’s detention was within the scope of Article 28(1). Since the Claimant’s detention failed to comply with requirements under Dublin III and the 2017 Regulations, it was unlawful.
The findings in Hemmati and Ismail establish that if one’s immigration detention falls within the scope of Dublin III it must be compliant with the safeguards found in Dublin III and the 2017 Regulations, even if there were some other purpose for the detention.
The process of determining the EU Member State responsible for examining an asylum claim starts as soon as the application for protection is lodged with the host Member State (see Article 20). Once the criteria for determining the Member State for examining an asylum claim have been met, the case must be considered within Dublin III.
There will then be limitations on the detention provisions in domestic law. Detention is not permitted under Article 28(1) on the sole ground that there is a realistic prospect of transfer to another Member State (or that such transfer is imminent). Instead, there must be “a significant risk of absconding”. Further, Article 28(3) makes it clear that any period of detention must be for as short a period as possible and for no longer than the time reasonably necessary to fulfil the required administrative procedures.
Individuals whose immigration detention falls within the scope of Dublin III, yet who do not pose “a significant risk of absconding” – when considered in the light of criteria set out in the 2017 Regulations – may thus succeed in a claim for wrongful imprisonment and could be entitled to damages. Amongst these, there will be a sub-category of individuals whose immigration detention was within scope of Dublin III and which occurred after the passing of Dublin III (in June 2014) and before the adoption of the 2017 Regulations (in March 2017). The findings in Hemmatti suggest they may have particularly strong claims of wrongful imprisonment.