Supreme Court unanimously rules detention of asylum seekers pending removal was unlawful
3 December 2019
In a significant public law decision, the Supreme Court dismissed the Secretary of State’s appeal and held that the policy governing detention pending removal fails to comply with the Dublin III Regulation as it lacks adequate certainty and predictability.
The respondents were five individuals who had travelled to the UK illegally and made claims of asylum, having entered via at least one other member state of the European Union in which they had already claimed asylum. Relying on the procedure set out in the Dublin III Regulation (Parliament and Council Regulation (EU) No 604/2013 of 26 June 2013) (“Dublin III”), the Secretary of State requested those states to take responsibility for examining the asylum claims. Each such state agreed.
The respondents were then detained pending their removal pursuant to paragraph 16(2) of the Immigration Act 1971. Paragraph 1(3) of Schedule 2 to the 1971 Act provides that in exercising powers of detention, immigration officers must act in accordance with such instructions as may be given to them by the Secretary of State.
The policy in relation to detention to effect removal is set out in Chapter 55 of the Enforcement Instructions and Guidance (23 October 2015) (“the EIG”). The power to detain is also subject to the well-known Hardial Singh principles. The Supreme Court in R (Nouazli) v Secretary of State for the Home Department  UKSC 16;  1 WLR 1565 (at §75) recently confirmed that the courts will monitor the compliance of immigration detention with those principles, which in summary require that: (i) there is an intention to deport the individual and that the power to detain is used for that purpose; (ii) the period of detention is reasonable; (iii) the power to detain is not sought if it becomes apparent that deportation cannot be effected within a reasonable period; (iv) reasonable diligence and expedition is exercised to effect removal.
The first issue for the Supreme Court was whether the respondent’s detention met the requirements of Dublin III. Article 28 of Dublin III permits detention where there is a “significant risk of absconding”, “risk of absconding” being defined in article 2(n) as the existence of reasons in an individual case, based on objective criteria defined by law, to believe that the person subject to a transfer procedure might abscond.
To answer this question, Lord Kitchin’s judgment considers in detail the decision of the Court of Justice of the European Union (“the CJEU”) in Policie ČR, Krajské ředitelství policie Ústeckého kraje, odbor cizinecké policie v Al Chodor (Case C-528/15)  4 WLR 125 (“Al Chodor”).
The CJEU held that articles 28(2) and 2(n) of Dublin III required Member States to ensure that detention was subject to strict safeguards of “legal basis, clarity, predictability, accessibility and protection against arbitrariness”. As such, Member States are required to establish, “in a binding provision of general application”, objective criteria underlying the reasons for believing that an applicant for international protection who is subject to a transfer procedure may abscond (§§37-38; 53; Al Chodor §§40 – 46). The necessary safeguards would then be in place in so far as the wording of the provision sets out the “limits of the flexibility of [the] authorities in the assessment of the circumstances of each specific case” in a manner which is “binding and known in advance.”
However, the CJEU did not go as far as the Opinion of Advocate General Saugmandsgaard Øe of 10 November 2016 EU:C:2016:865;  3 CMLR 24, who expressed the view that the concept of “law” required the criteria to be laid down in legislation (Opinion, §§42-45). This would have taken the EU standard further than the meaning of the concept of “law” in the ECHR case law (§§31-32; 39).
Before the Supreme Court, the Secretary of State accepted that Chapter 55 of the EIG was not legislation, but it was contended that it includes rules which decision-makers are obliged to follow as a result of settled case law, and that it constitutes a clear statement of the circumstances in which the statutory criteria will be exercised, which are objective and publicly accessible, and if necessary, subject to the interpretation of the courts.
The Supreme Court disagreed, holding that the relevant provisions of Chapter 55 contained
no more than general guidance as to how the power to detain is to be exercised and does not constitute a set of objective criteria against which the risk of absconding is to be assessed.
Nor, the Court held, did they set out the “limits of the flexibility of the authorities in the assessment of the particular circumstances of each case in a manner which is binding and known in advance” (§58).
The Hardial Singh principles require the power to detain to be exercised reasonably and for the prescribed purpose of facilitating deportation, but they
do not constitute objective criteria on the basis of which an assessment may be made as to the likelihood that a person who is subject to a transfer procedure may abscond (§§59 – 61).
The Supreme Court concluded that persons subject to a Dublin III procedure could not know in advance which criteria would be used for the basis of an assessment of whether they are likely to abscond, and that they would not be able to identify the limits of the flexibility of the relevant authorities in carrying out their evaluation (§65). It followed that Chapter 55 of the EIG could not satisfy the requirements of articles 28(2) and 2(n) of the Dublin III Regulation.
Though not strictly necessary, the next stage of the Court’s analysis considered whether Chapter 55 of the EIG constitutes a binding provision of general application which amounts to a defining “law” within the meaning of article 2(n).
Notwithstanding that the policy created significant legal effect and was enforceable before the courts, the Court held that a provision can only amount to a “law” within the meaning of article 2(n) if it has the “necessary quality of certainty”; something that Chapter 55 lacked. The Court held that “to ignore the need for certainty would be impermissibly to remove the word “law” from its context” (§72).
The second issue for the Supreme Court was whether damages were payable. The Court held that they were: as Chapter 55 did not comply with articles 28(2) and 2(n) of the Regulation, in the case of each of the respondents the decision to detain lay outside the scope of any legitimate exercise of the discretion conferred by Schedule 2 to the 1971 Act and the ingredients of the tort of wrongful imprisonment were present (§§89-105). The Court also rejected the Secretary of State’s submission that the respondents should only be entitled to nominal damages (§§106-112).
The judgment will mark a significant development in asylum law in practice, but it is also notable for its exposition of deeper issues of constitutional and public law theory. Bringing academic debate to life, Lord Kitchin questioned whether any policy could ever amount to a “law” within the meaning of article 2(n).
The respondents’ arguments, drawing on constitutional law theory and the decision in Al Chodor, were rehearsed by the Court but were ultimately left for a case where it was necessary to decide the issue. However, this passage makes for fascinating reading (see §§75-79). It is also significant that the Court’s judgment criticised Chapter 55 of the EIG in relatively severe and general terms, such that it is likely to have significant repercussions for the future of asylum detention regulation.
Secondly, Lord Kitchin was clear that
there is no reason to believe that the impact of loss of liberty is likely to be affected by whether lack of legal authority for the detention is the consequence of a failure to comply with European Union or domestic legislation, and in my judgement the source of the lack of legal authority does not justify treating those who have been wrongfully detained differently from one another (§91).
Rejecting the Secretary of State’s arguments, the Supreme Court was confident in awarding damages for unlawful detention under UK common law, such that the principles of EU law as articulated in Francovich v Italian Republic (Joined Cases C-6/90 and C-9/90)  ICR 722 Brasserie du Pecheur SA v Germany; R v Transport Secretary; Ex p Factortame Ltd No 4 (Joined Cases C-46/93 and C-48/93)  QB 404 did not constrain the claim by the respondents for false imprisonment.
Charlotte Gilmartin is a barrister at 1 Crown Office Row.