In the recent case of R (on the application of Hemmati and Others) v Secretary of State for the Home Department  UKSC 56, the Supreme Court decided upon a case that will have significant consequences regarding the detention of illegal immigrants that have already applied for refugee status in the EU.
Facts of the case
This case had five claimants, all of whom arrived illegally in the UK during 2015. Relevant enquiries upon their apprehension revealed that all five had already made asylum applications in EU countries (in aggregate the five claimants had applications in Bulgaria, Austria, Hungary and Germany). The Secretary of State considered there was a risk of the claimants absconding, and consequently detained all five for periods ranging from 4 to 57 days, pending their removal to the countries of their original asylum application. This case turned on the legality of that detention.
The Dublin III Regulations
The European Union has harmonised its procedures and substantive rules of refugee law. It has established a body of law known as the Common European Asylum System (CEAS). The CEAS relies upon the Dublin system (currently governed by what is known as the Dublin III Regulations) to ensure the rapid identification of the member state responsible for examining the asylum application. Dublin III contains protections for those applying for asylum, including rules that both enable and limit their detention. For example, detention is limited to when there is a risk of the applicant absconding.
The United Kingdom opted into Council Directive 2003/9/EC. The CJEU has previously held (in a case known as Al Chodor) that that directive means that asylum applicants may only be detained where there are clearly defined and objective criteria in domestic law. The CJEU specified that the criteria must be binding upon the member State and be "clear predictable and accessible". Each individual applicant must be measured against those objective criteria.
Purporting to fulfil the requirement of Council Directive 2003/9/EC, paragraph 55.3.1 of the Secretary's Enforcement Instruction Guidance (EIG) sets out a range of factors that influence a decision to detain.
The Supreme Court's disposition of the appeal
The Supreme Court noted that Chapter 55 of the EIG had not been updated since the introduction of Dublin III; it only included the more limited criteria of Dublin II. Further, most of the criteria set out in paragraph 55.3.1 were irrelevant to the risk of the applicant absconding, which was the relevant consideration they were supposed to achieve. Further again, the list of factors was not exhaustive and it did not identify the limits of the Secretary's flexibility in making her determination. For those reasons, the Court held that the criteria were not sufficiently objective and predictable as required by the Dublin III Regulations. In any event, the Court noted that the EIC was not a "law" as required by Dublin III, so the detention could have also been invalidated on that basis.
The Court consequently held that damages were payable to the claimants for any loss that the unlawful detention caused them. The Secretary argued that only nominal damages ought to be awarded since it was inevitable that the claimants would be detained were it not for the erroneous terms of the EIC. However, that argument was misguided as the act that caused the breach was the detention, not the erroneous EIC. With no existing legal framework for the claimants' detention it could not have been inevitable that they would be detained. The matter was remitted back to the County Court for determination of the quantum of damages.
This case will have significant effects on the way that immigrants that arrive legally can be detained if they have already applied for refugee status elsewhere. Given the geographic location of the UK, that will often be the case. The case will have even greater effect significant effect on the way the government drafts and publishes the laws that regulate this issue.