Supreme Court holds that Dublin III Detention between January 2014 and March 2017 was unlawful

Wednesday 27 November 2019

Irena Sabic of Garden Court was instructed by Bahar Ata of Duncan Lewis; Greg Ó Ceallaigh of Garden Court was instructed by Krisha Prathepan of Duncan Lewis; and Raza Halim of Garden Court was instructed by Kaweh Beheshtizadeh of Fadiga and Co.

For more information on additional counsel, please see full list of representatives below.

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The Supreme Court has dismissed the appeal of the Secretary of State for the Home Department from the Court of Appeal decision in R(Hemmati and others) v SSHD [2018] EWCA Civ 2122 in which it was held that the Home Office was not entitled to detain asylum seekers for removal under the Dublin III Regulation because of the failure until 15 March 2017, to set out in law the requirements for detention.

The Dublin III Regulation (Regulation 604/2013) introduced new protections for asylum seekers being moved around by EU Member States, including at Articles 28 and 2n a prohibition on detention except where there was a “significant risk of absconding” determined individually by reference to “objective criteria defined by law”.

The Home Office made no attempt to comply with those criteria and simply continued routinely detaining Dublin asylum seekers until 11.18am on 15 March 2017, when the Transfer for Determination of an Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017 were rushed into force – moments after the judgment of the Court of Justice of the European Union in Policie ČR, Krajské ředitelství policie Ústeckého kraje, odbor cizinecké policie v Al Chodor (Case C-528/15) [2017] 4 WLR 125. In that case, the United Kingdom had tried unsuccessfully to argue that setting out objective criteria for detention in a binding legal provision was not necessary, despite the clear terms of the Regulation, but relied on “established case law and consistent administrative practice”.

In the Supreme Court the Secretary of State argued that the Court of Appeal had been wrong to hold that the 5 respondent asylum seekers were entitled to substantial damages because of this failure.

The Secretary of State argued that: (i) the policy published by the Secretary of State in Chapter 55 of the EIG satisfied the requirements imposed by articles 28 and 2(n) of the Regulation for a measure setting out “objective criteria defined by law” in respect of absconding in an individual case; and (ii) even if they did not, the respondents were only entitled to Factortame damages; and (iii) alternatively, they were only entitled to nominal damages because they would have been detained anyway.

The Secretary of State’s case was comprehensively rejected by a unanimous Supreme Court (per Lord Kitchin, with Lord Reid, Lady Hale, Lord Wilson and Lady Arden agreeing).

The Court held that the new limitations on detention in the Dublin III Regulation were of great importance because it was intended to confer “a high level of protection upon those subject to it” (§54); but Chapter 55 made “no reference” to the Dublin III requirements at all, still less any of its requirements such as proportionality (§57). Nor did Chapter 55, which includes numerous factors irrelevant in a Dublin III case (§61), set out the limits to its flexibility in that context (§58). Moreover, Chapter 55 EIG did not constitute “law” for the purposes of the Regulation because it lacked “the necessary qualities of certainty and predictability” (§74).

The Court also held that the detention of the respondents amounted to a false imprisonment because the effect of the Dublin III Regulation was that “the decision to detain the respondents lay outside the boundaries of any permissible exercise of the power to detain conferred by paragraph 16(2) of Schedule 2 to the 1971 Act” (§89).

Moreover, there was an entitlement to damages for false imprisonment where a person was unlawfully detained and (§91):

“There is no reason to believe that the impact of loss of liberty is likely to be affected by whether lack of legal authority for the detention is the consequence of a failure to comply with European Union or domestic legislation, and in my judgement the source of the lack of legal authority does not justify treating those who have been wrongfully detained differently from one another.”

The Court also rejected the Secretary of State’s case that they were entitled to nominal damages only because the Home Office would have changed the law had it been realised what Dublin III required (§112):

“It can be no answer to a claim for damages for unlawful imprisonment that the detention would have been lawful had the law been different.”

This case is of enormous significance, not least because the result is that all of those detained for the purposes of Dublin III removal between the coming into force of the Dublin III Regulation in January 2014 and 15 March 2017 were unlawfully detained and falsely imprisoned – and are entitled to damages. Given the reflexive way in which detention is routinely and unnecessarily used in Dublin III cases the numbers affected are likely to be high.

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

The representation was Michael Fordham 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 Raza Halim of Garden Court Chambers for Kaweh Beheshtizadeh at Fadiga and Co. For more information, please contact the representatives.

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

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