R (Hemmati & Ors) v Secretary of State for the Home Department [2019] UKSC 56 – potentially thousands unlawfully detained

In a damning indictment of the UK’s immigration detention policy, the Supreme Court has confirmed that the detention of asylum seekers pending transfer to other EU states under the “Dublin Regulation” was unlawful between 1 January 2014 and 15 March 2017, when new regulations were belatedly adopted. This could result in thousands of false imprisonment claims by those detained during this period.

Dublin III Regulation

The Dublin III Regulation (EU Regulation 604/2013) determines the state responsible for considering an asylum claim lodged in one EU Member State when a claimant is found to have passed through another Member State.

Articles 28(2) and 2(n) of the Regulation provide safeguards against arbitrary detention by prohibiting detention unless there are reasons to believe, based on “objective criteria defined by law” and an “individual assessment” that they might abscond. Any detention has to be proportionate and for the shortest time possible, and can only be justified where less coercive alternatives are not available.

In R (Hemmati & Ors) v Secretary of State for the Home Department [2019] UKSC the Secretary of State sought to overturn successful false imprisonment claims brought by five individual asylum seekers, each of whom were detained pending their removal to other EU Member States under the Dublin III procedure.

Section 55 does not constitute “law”

The case specifically concerned the requirements imposed on Member States by the Regulation and whether the UK’s policy for detention pending removal set out in Chapter 55 of the Enforcement Instructions and Guidance (23 October 2015) meets them. The Supreme Court unanimously upheld the Court of Appeal’s decision in finding that it does not.

In his sole judgment, Lord Kitchin confirmed that the purpose of such a policy is to provide a subject with the criteria applied when the decision to detain is made without which they would not be able to make representations in relation to their detention.

He found that Chapter 55 does not state that the only permissible basis for detention is significant risk of absconding nor that detention has to be proportionate. Nor does it establish objective criteria for assessing whether someone might abscond.

In short, Chapter 55 does not provide clear and objective criteria as to how to assess the risk of absconding – surely the central question when deciding to detain – and lacks the sufficient certainty and predictability to constitute “law” for the purposes of the Dublin III.

The Secretary of State’s submission that the Respondents should only be entitled to nominal damages was rejected and all five were awarded damages for false imprisonment under domestic law (notably more generous than under EU law).

Absence of adequate safeguards

This important case not only renders the detention of many thousands detained in the UK pending transfer until March 2017 unlawful, but it also exposes the shocking absence of adequate safeguards to protect against the arbitrary detention of many very vulnerable individuals caught up on the UK’s immigration system.

In 2018 24,748 individuals were detained under immigration powers in the UK. This included vulnerable adults such as victims of torture and those with severe mental health or learning difficulties. It resulted in the separation of families with children and caused devastation to the lives of people who had been living in the UK for many years. In 2017 six men took their lives in immigration detention and between January 2016 and August 2017 there were 647 reported cases of detainees needing medical assistance for self-harm.

It is a long established principle of common law that immigration detention must only be used when there is an intention to deport and only for that purpose (the Hardial Singh principles). Yet 56% of detainees are not deported but released back into the community and in the last five years the Government has had to pay out £21.2 million in damages for unlawful detention claims. In light of the Supreme Court’s findings that their policy provides no clear criteria for making a decision to detain, is it any wonder that the Home Office keep getting these decisions wrong?

Detention under immigration powers is an administrative rather than a criminal process and therefore lacks many of the procedural safeguards that are taken for granted in the criminal system. The power to detain is exercised by immigration officers with no judicial oversight. There is no automatic right to free legal advice and there is no limit on the amount of time someone can be detained under immigration powers. The average length of time spent in immigration detention is 143 days. People are routinely detained for months and sometimes years.

To make matters worse the availability of quality legal representation for those held in immigration detention is a serious concern. In their most recent Legal Advice Survey (Spring 2019) Bail for Immigration Detainees reported that just 64% of immigration detainees had legal representation and that subjects reported a decline in the quality of representation.

Urgent need for review

With no clear and objective criteria as to how to assess the risk of absconding – surely the central question when deciding to detain – the risk of arbitrary decision-making in immigration detention is stark. This is compounded by lack of procedural safeguards and quality legal representation which will see many of those decisions going unchecked.

While those facing removal under the Dublin Regulation do now enjoy slightly more clarity over the basis and reasons for their detention, this is limited to a small proportion of detainees and the protection will only last as long as the UK remains part of the EU, which looks set to end very shortly following the recent general election result.

This case calls into question the safety of our entire immigration detention system and should force an urgent review of the UK’s immigration detention policy. However, in light of December’s election outcome and the anti-immigration sentiment that has been unleashed by the Brexit campaign, sadly it seems unlikely that the liberty and welfare of detained migrants is going to be a priority any time soon.

Link to judgment: https://www.supremecourt.uk/cases/uksc-2018-0197.html