In SS v Secretary of State for the Home Department and Oxfordshire County Council John Howell QC considered whether Article 28 of the Dublin III Regulation is directly effective. Irena Sabic of Garden Court Chambers represented the claimant.
In a detailed judgment, the Deputy High Court Judge Howell QC held that the claimant’s detention was unlawful under Article 28(1) and 28(2) following the Court of Justice of the European Union (CJEU) judgment in Al Chodor and Others (C-528/15), where the CJEU decided that the objective criteria for determining the risk of absconding must be established in a binding provision of general application.
Al-Chodor led to the publication of the Transfer for Determination of an Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017.
This judgment is highly significant. All those detained under Article 28 of Dublin III, prior to the implementation of the Transfer for Determination of an Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017, have been unlawfully detained.
The claimant’s challenge against the second defendant’s assessment of his age was not successful.
The Secretary of State for the Home Department has been given permission to appeal to the Court of Appeal. Permission has also been granted to appeal the Deputy High Court Judge’s decision on the standard of review applicable to the Secretary of State for the Home Department's assessment of age.