Court of Appeal rules asylum seekers cannot be held indefinitely pending return under Dublin III Regulation

In an important decision handed down yesterday, the Court of Appeal ruled by a majority (with Lord Justice Sales dissenting) that asylum seekers cannot be held in detention indefinitely whilst awaiting possible return to another EU state under Regulation (EU) No 604/2013, which is commonly known as the Dublin III Regulation.

Duncan Lewis Solicitors, who represented four of the appellants, called it a landmark judgment. EIN members can read the judgment here.

According to the Guardian, the Court ruled that the Home Office unlawfully held many asylum seekers who passed through a safe country before reaching the UK. Thousands of people may have been unlawfully detained, the Guardian said.

The conjoined appeals heard in the Court of Appeal test case related to three judgments that covered the cases of five individuals who were placed in detention for periods pending possible removal to other EU states.

According to Duncan Lewis, the appeals related to the effect and meaning of Article 28 and 2(n) of Dublin III and the effect of last year's Court of Justice of the European Union judgment in Al Chodor (C-528/15). The appellants argued that the only ground for detention specified under Article 28(2) was that there is a significant risk of absconding.

Duncan Lewis said the Court of Appeal found:

• In light of Al Chodor, it was clear that neither Hardial Singh principles nor Chapter 55 of the Enforcement Instructions Guidance (EIG) had satisfied the requirements under Article 28 and Article 2(n) of Dublin III. They had not understood to be in dispute that Hardial Singh's principles were insufficient. A list of criteria, some of which were relevant to absconding, and some of which were not, did not satisfy the Al Chodor requirements. They were not a "framework of certain predetermined limits" as required by Al Chodor for the deprivation of a fundamental right to liberty.
• Domestic law of false imprisonment governs whether damages were payable in relation to detention.

The Guardian noted that the Court's judgment found it was not lawful for the Home Office to indefinitely detain asylum seekers for the purposes of transfer to another EU state when "significant risk of absconding" had not been defined in UK law.

The Court of Justice of the European Union ruled last year in Al Chodor: "Article 2(n) and Article 28(2) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, read in conjunction, must be interpreted as requiring Member States 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. The absence of such a provision leads to the inapplicability of Article 28(2) of that regulation."

According to the Guardian, affected people may now be able to claim damages from the Home Office.

In response to the ruling, a spokesperson for the Home Office told the Guardian: "We are disappointed with the court's ruling and are carefully considering the next steps."