Liberty and Dublin III: the unlawful detention of asylum seekers (Justice Gap) (15 October 2018)

Krisha Prathepan has written for the Justice Gap on the 4th October 2018 ruling in Hemmati & Ors [2018] EWCA Civ 2122 which saw 5 appellants bring a claim against the Secretary of State for the Home Department (SSHD) for unlawful detention. Krisha was instructed by two of the four appellants in the test case, alongside Bahar Ata, who represented two others. Krisha tells of Mohammed’s story, an Iraqi national who was forced to flee his home country for fear of persecution from ISIS. Mohammed first arrived in Austria, where he struggled to survive, before coming to the UK in 2015. He was then held in immigration detention, pending transfer under Dublin III regulations which stipulate an asylum seeker can be sent back to the first safe country they enter for an assessment of their asylum claims. The regulations also state that said asylum seeker may only be detained if there is a significant risk of absconding. He brought a claim against the SSHD arguing that his detention was unlawful. The Court of Appeal in a 2:1 judgment ruled in favour of Mohammed, maintaining that the SSHD had acted unlawfully in detaining all 5 appellants whilst their claims were considered against the Dublin III regulations. Krisha writes: ‘In Al Chodor, the CJEU held that member states should define, in law, the objective criteria used to decide that the person subject to transfer is likely to abscond. This case was handed down on 15 March 2017…The Court found that between 1 January 2014 (when Dublin III came into effect) and 15 March 2017 (when the Home Office published the regulations mentioned above), there was no criteria or definition for ‘significant risk of absconding’ in domestic law, which means that the detention of the appellants during this period was unlawful and they may be entitled to damages.’