Ismail, R (On the Application Of) v Secretary of State for the Home Department  EWHC 3192
A substantial judicial review judgment was handed down on 26th November 2019 by the High Court. The legal points of principle within the case will affect hundreds of asylum seekers who are detained pursuant to the Dublin III Regulations (both Hemmati and Omar categories). The High Court found that the protections offered against arbitrary detention (enshrined in Article 28), apply from the time that asylum is claimed in the UK.
The claimant’s (C) detention was challenged on the basis that it was unlawful at all times because he was not detained in accordance with Article 28 of the Dublin III Regulation and the Transfer for Determination of an Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017 (SI 405/2017), which seek to transpose Article 28 into domestic law.
The main argument of the defendant (D) was that she was under no obligation to detain C in accordance with Article 28, because his detention fell entirely outside the scope of that Article. D argued that she could detain him under free-standing domestic law provisions, in the speculative hope that he could be returned to a non-EU state.
The major legal issues raised in the judicial review were whether a) the claimant’s detention fell within the scope of Article 28 of the Dublin III Regulation; and b) if the claimant’s detention was in violation of the provisions within Article 28 and the 2017 Detention Regulations.
Regarding the first issue, the court ruled that Article 28 (3) makes it clear that any period of detention must be for as short a period as possible and no longer than the time reasonably necessary to fulfil the required administrative procedures. Article 28 (3) is a binding provision and has direct effect. Once the criteria for determining the Member State for examining an asylum claim have been met, the case must be considered within the Dublin III Regulation procedures. Therefore, there are limitations on the detention provisions in domestic law.
It was noted that the Dublin III Regulation will not come into play the moment a foreign national is apprehended at the border. However, it will come into play shortly thereafter. The wording of Article 20 makes it clear that the process of determining the Member State responsible for examining the individual's asylum claim starts as soon as the application is lodged with the host Member State.
In other words, asylum seekers should not be detained simply because they fall within the Dublin III Regulation procedure. The Regulation also sets out the procedure to be followed if a Member State fails to comply with a deadline. Therefore, it was accepted that principally C’s detention fell within the scope of Article 28.
On the second issue raised on whether C’s detention violated the provisions within Article 28 and the 2017 Detention Regulations, the court ruled that detention can only be justified on the basis of a significant risk of absconding. The criteria that determines whether the risk of absconding is ‘significant’ is in accordance with the Detention Regulations.
In C’s case, there are no detention reviews which demonstrate that the SSHD determined that C posed a ‘significant’ absconding risk, nor is there any reference to proportionality of necessity based on C’s individual circumstances.
In conclusion, the court ruled that C’s detention fell within the Dublin III Regulation and that the SSHD had failed to comply with Article 28 and the 2017 Regulations which rendered C’s detention unlawful.
Public law supervisor Raja Uruthiravinayagan, solicitor Maria Petrova-Collins and trainees Hussein Meghji and Gina Skandari represented the claimant. Raza Husain QC of Matrix Chambers, David Chirico and Stephen Knight, both of One Pump Court, were instructed.
For more information please contact Raja Uruthiravinayagan on: 020 3114 1107 or at Rajau@duncanlewis.com