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Court of Appeal – detention of asylum seekers unlawful under Article 28 Dublin III

8 October 2018

Irena SabicMark SymesGreg Ó CeallaighRaza Halim

In a majority decision, the Court of Appeal (Etherton and Peter Jackson LLJ; Sales LJ dissenting) delivered a significant judgment affecting the lawfulness of detention of asylum seekers subject to the Dublin III Regulation.

The Court of Appeal had three Administrative Court decisions before it: R(Hemmati et al) v SSHD  [2016] EWHC 1394, R(Abdulkhadir & Anor) v SSHD [2016] EWHC 1504 and R(SS) v SSHD [2017] EWHC 1295.

The Court examined the lawfulness of detention in respect of five individuals, detained at various periods between 1 January 2014 (when Dublin III came into force) and 15 March 2017 (when the SSHD published SI/405/2017 on the Determination of Significant Risk of Absconding Criteria). The Administrative Court in SS had before it the CJEU decision in Al Chodor and so held that the previous reasoning of Garnham J and Irwin J in earlier cases concerning unlawful detention in the Dublin III context could not stand in light of it. The SSHD appealed in SS and responded to the appeals brought against the judgments of Garnaham J and Irwin J.

The Court of Appeal concluded that all of the Appellants (including SS) were unlawfully detained because the UK did not comply with the requirements of Article 28 and 2(n) of Dublin III – there was no objective criteria defined by law for determining whether there was a significant risk of absconding.

The SSHD argued that the EIG and/or the common law Hardial Singh principles satisfied the requirements of article 28 of Dublin III. The Court rejected the arguments [166]:

(i) In relation to Hardial Singh, the Court had no hesitation in holding that ‘they are certainly not criteria defined by law for purpose of Article 2(n). They do not specify criteria for deprivation of liberty which have the clarity, predictability, accessibility and protection against arbitrariness ‘within a framework of certain predetermined limits’ required by Al Chodor.’[169

(ii) In relation to the EIG, the Court held that it also failed to comply with the requirements of Article 28 and 2(n) of Dublin III. In particular, the EIG contained no direction that in a Dublin III case, only a significant risk of absconding could justify detention, nor did it clarify what criteria were to be used for the assessment of such risk. Critically, the EIG was not a framework of pre-determined limits, as required by Al Chodor for deprivation of a fundamental right to liberty [170 – 180].

The Court further rejected the alternative argument put forward by SSHD that even if the Appellants were unlawfully detained, no damages were payable because the applicable test was ‘sufficiently serious breach’ set out in Factortame:

the Factortame principle has no relevance because the individual right of each human being to liberty exists save insofar as it is legitimately cut down by law. The right to liberty does not exists because the EU and its Charter of Fundamental Rights any more than it exists because of the Council of Europe and the Convention.’ [193].

Thus all the appellants are entitled to damages for the tort of false imprisonment.

The case has been reported in the press, including the Guardian.

The representation was Nathalie Lieven QC of Blackstone Chambers and Irena Sabic of Garden Court Chambers for Bahar Ata at Duncan Lewis, Hugh Southey QC of Matrix Chambers and Greg Ó Ceallaigh of Garden Court Chambers for Krisha Prathepan at Duncan Lewis, and David Chirico of One Pump Court with Mark Symes and Raza Halim of Garden Court Chambers for Kaweh Beheshtizadeh at Fadiga and Co. For more information, please contact the representatives.

Irena SabicMark Symes, Greg Ó Ceallaigh and Raza Halim are all members of the Garden Court Chambers Immigration and Public Law teams.

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