Reported Case

Following the Court of Appeal’s judgment in Omar & Others vs The Secretary of State for the Home Department (SSHD), an appeal will be launched to the Supreme Court regarding the appellants’ challenge to the legality of The Transfer for Determination of an Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017 (“the 2017 Detention Regulations”).

History of Case

In December 2017, the Administrative Court designated a cohort of six Duncan Lewis cases (Omar & Others) to examine the legality of the 2017 Detention Regulations which came into force on 15th March 2017.

The key grounds of the challenge were:

• It was unlawful for the SSHD to transplant factors found in previous immigration detention practice and guidance.


• The 2017 Regulations fail to prescribe the criteria, which must form the basis for any reasoned conclusion in an individual case that there is a significant risk of the individual absconding if not detained.


• The provisions are unlawful and contrary to the content and purpose of the Dublin III Regulation.


• The 2017 Detention Regulations contain provisions which are far too broad and imprecise.


• The 2017 Detention Regulations are unlawful in not securing such rights as transparency, legal certainty and due process.

The rolled-up hearing took place on the 1st and 2nd February 2018. On 28th March 2018 the court handed down judgment, granting permission to bring a judicial review but refusing the claimants’ claims. The court granted permission to appeal to the Court of Appeal.

Two overarching grounds of appeal were put forward, the first being that the judge was wrong not to accept that the objective criteria in the 2017 Detention Regulations must define the existence of the risk of absconding. The second was that the judge was wrong to conclude that the criteria set out in the 2017 Detention Regulations are proportionate.

The Court of Appeal handed down judgment on 21st February 2019, with Lord Justice Davis and Lord Justice Hickinbottom rejecting both grounds of appeal.

Appeal to the Supreme Court

The appellants will be further appealing to the Supreme Court and consideration will be given to linking the case with the SSHD’s appeal to the Supreme Court in Hemmati so that issues of law regarding status and source (Hemmati) and design and content (Omar) can be considered together.

The appellants continue to take issue with the following:

1. The Court was wrong to reject §§ 30-31, 47 and 54 of the appellants’ argument that Articles 28(2) and 2(n) of the Dublin III Regulation require objective criteria which “define the existence of the risk of absconding”;


2. The approach, clarified by the Court (§§45-46), effectively deprives Article 2(n) of any protective function at all. The effect is that the concrete decision whether or not to detain an individual person is entirely dependent upon the exercise of a general discretion and so the objective criteria falls away completely; and


3. The Court was wrong (§§ 60-63) in concluding that the 2017 Detention Regulations meet the requirements of necessity and proportionality. The criteria are instead merely factors, many of which set no limit at all, still less a predetermined one. The appellants will maintain that this is a wide net of factors which effectively catches everyone; they are a set of factors too diluted in their content to constitute the protection which the right to liberty requires in this context.

Representation

The appellants are represented by Raja Uruthiravinayagan, who is leading the legal team, as well as Maria Petrova-Collins and Husein Meghji. Instructed Counsel are Stephen Knight and David Chirico, both of One Pump Court, and Michael Fordham QC of Blackstone Chambers.

 

Find full details of this case on Bailii’s website here.