United Kingdom: Supreme Court rules detention pending removal under the Dublin III Regulation unlawful

Wednesday, November 27, 2019

On 27 November 2019, the United Kingdom Supreme Court (the Court) published its ruling on Hemmati and Others [2019] UKSC 56 concerning an appeal brought by the Home Office to determine whether the detention pending return of five Iraqi and Afghan nationals was lawful under the Dublin III Regulation.

The applicants arrived in the UK under different circumstances before applying for international protection. They were detained pending their removal under the Immigration Act 1971. The issue before the Court was whether the policy under Chapter 55 of the Enforcement Instructions Guidance 2015 established objective criteria defined by law for assessing the risk that an applicant subject to a Dublin III transfer procedure may abscond. Therefore, the question to the Court was whether the detention pending removal of the applicants was unlawful, and if so, whether they were entitled to damages.

The Court of Appeal had previously ruled that Chapter 55 failed to give effect to Article 28(2) and 2(n) Dublin III. Indeed, the criteria for assessing the risk that an applicant will abscond must be clear, predictable, and accessible.

The Supreme Court found the criteria to be unclear: Chapter 55 failed to establish objective criteria or a framework with pre-determined limits to determine whether an individual subject to a Dublin III transfer will abscond. The policy, used prior to the introduction of the Transfer for Determination of an Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017 on 15 March 2017, did not satisfy the requirements of Articles 28(2) and 2(n) Dublin III because the decision to detain the applicants fell outside the scope of a legitimate exercise of the discretion conferred under the Immigration Act 1971.

The Supreme Court therefore dismissed the appeal brought by the Home Office. It held that the applicants had been detained unlawfully and were entitled to damages for the tort of false imprisonment.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is pusexblished but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.



Dublin Transfer