Immigration detention – recent Supreme Court ruling will impact thousands

Last month the Supreme Court handed down judgment in the case of R (on the application of Hemmati and others) (Respondents) v Secretary of State for the Home Department (Appellant) [2019] UKSC 56. This is an important case due its potential impact on thousands of individuals. 

The case concerned the legality of the detention of five individuals (Respondents) who had claimed asylum in the UK. These individuals had come to the UK via another Member State of the European Union, in which they had already claimed asylum. Under the Dublin III Regulation the asylum claim had to be examined in the Member State where asylum was first claimed. Accordingly the Home Office asked the relevant Member States to take back the individuals and to process their asylum claims. 

Pending their removal, the Home Office (Appellant) detained the five individuals under immigration powers. While the Dublin III Regulation (the Regulation) allows for the detention of individuals prior to transfer, articles 28(2) and 2(n) of the Regulation require that it must only take place where there is a “significant risk” of absconding, assessed on the basis of “objective criteria defined by law”. Detention also had to be proportionate, for as short a time as possible and only where less coercive means were unavailable. 

The Respondents challenged the legality of their detention. They had all been detained in accordance with the Home Office’s policy for detention pending removal as outlined in Chapter 55 of the Enforcement Instruction and Guidance which was a general policy of detention. They argued that the Chapter 55 Policy did not meet the requirements of articles 28(2) and 2(n) in that it did not a) establish effective objective criteria and b) have the status of law. The Home Office, disagreed, arguing that the Chapter 55 Policy was sufficient to meet both criteria. 

The court agreed with the Respondents. It found that the Chapter 55 Policy provided general guidance for detention and did not set out the criteria with the required degree of certainty and in a manner which is binding and known in advance. It therefore found that the Chapter 55 Policy did not meet the objective criteria requirement. It also found that the Policy did not constitute a law for the purpose of articles 28(2) and 2(n). The detention of the Respondents was therefore unlawful. The court also went on to find that the Respondents were entitled to substantive damages, disagreeing with the Home Office position that detention could be justified on other bases and that nominal damages only should be awarded. 

This case is important because it is likely that thousands of individuals would have been detained by the Home Office during the relevant dates of 1 January 2014 (when the Regulation came into force) and 15 March 2017 (when the UK finally set out objective criteria in legislation following an EU case) for the purpose of transfer to an EU country. Those individuals would be entitled to compensation for their wrongful detention. While the precise figures are not known, according to the Guardian, the UK made 18,853 transfer requests between 2015 and 2018. It is safe to assume a great number of the individuals would have been detained. 

The case is also an interesting example of EU law taking a stricter approach than is found in UK law and practice to the use of immigration detention powers.  The Chapter 55 policy and Hardial Singh principles form the basis for almost all cases of immigration detention in the UK, but were found to provide insufficient protections in a Dublin III context. 

The case is also reflective of the fairly casual approach that the Home Office takes to immigration detention in the UK, routinely detaining people without proper justification. It is also somewhat inexplicable that it took the Home Office until March 2017 to comply with the Regulation despite its existence since January 2014. 

This is a positive development and there are thousands of people who are likely to have been affected. While some may have been removed to other Member States and may not even be aware of these legal developments in the UK, significant numbers may still remain and be in a position to bring false imprisonment proceedings. It will be interesting to see how things develop over the coming months.