United Kingdom – Court of Appeal rules on lawfulness of Dublin detention and damages claims

Thursday, October 4, 2018

On 4 October, the UK Court of Appeal ruled in a case concerning the detention of foreign nationals pending their removal to the countries that were responsible for the examination of their asylum applications under Dublin III.

The five foreign nationals were detained in 2015, after having entered the UK illegally. Upon their apprehension, Eurodac searches indicated that they had applied for asylum in other European states. They were placed under detention, in view of their removal, having been found unlikely to cooperate with domestic immigration authorities. After attempts to challenge the lawfulness of their detention and claim damages, the High Court dismissed the actions of them. The fifth applicant succeeded in their claim for damages at the liability stage, but the Secretary of State appealed against that decision.

On appeal, the Court focused upon the concept of “risk of absconding”, as a basis for detention pending Dublin transfer, and the existence of sufficiently clear criteria defining such risk in UK law. In this context, the judges heavily relied on the case law of the Court of Justice of the European Union (CJEU), in particular regarding the interpretation of Articles 2(n) and 28 of the Dublin III Regulation in the Al Chodor case.

In contrast with the dissident judge’s opinion that common law principles on detention and the criteria laid out in the Enforcement Instructions and Guidance, introduced immediately after the Al Chodor judgment, could suffice, the majority judges found that the criteria were not sufficiently defined in UK law. According to the majority judges, the principles impose a reasonableness test, rather than specifying criteria for deprivation of liberty, while the government’s Guidance consisted of indicative criteria and general advice, setting out the Home Office’s administrative policy. To reach this conclusion, the judges shared a similar starting point with the CJEU in cases Al Chodor and Ghezelbash, affirming Dublin III’s aim as one that was intended to improve the protection of applicants under this system.

Lastly, on the damages claim, the majority judges disagreed once again with Lord Justice Sales’ opinion that a “sufficiently serious breach” should have taken place for damages claims to be arguable, according to the CJEU’s findings in the Factortame case. The judges dismissed the relevance of the Factortame case, noting the autonomous existence of the right to liberty beyond EU law, as enshrined in Article 1 of the 1948 Universal Declaration of Human Rights. Consequently, relying on common law, the Court concluded that the case in question was one of false imprisonment, with damages being the appropriate form of remedy. The appellants’ detention was found to be unlawful and the cases were remitted to a court for the assessment of the damages’ quantum.

This item was reproduced with the permission of ECRE from the weekly ELENA 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 published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.



Dublin Transfer