Thousands of asylum seekers have been held unlawfully in detention

Thousands of asylum seekers have been held unlawfully in detention

From Proof magazine, issue 2

The Court of Appeal has ruled that thousands of people may have been held unlawfully in immigration removal centres across the UK.

The ruling related to three judgements concerning five individuals, who were detained for an indefinite period, pending possible removal to other EU member states under asylum claim arrangements under what is known as ‘Dublin III’. Under this rule, asylum seekers must claim asylum in their first safe country of arrival. Should they fail to do so, the Home Office has the authority to remove them to that country through which they initially passed.

As highlighted in the #Time4aTimeLimit campaign, there is no time limit on immigration detention in the UK. In a 2-1 majority ruling, Master of the Rolls – Sir Terence Etherton – and Lord Justice Peter Jackson, held that the indefinite nature of this detention was unlawful. Affected persons may now be able to claim damages from the Home Office for the tort of false imprisonment.

The appeal specifically concerned the meaning of Article 28 and 2(n) of the Dublin III Regulation, which relates to the detention of an individual for the purpose of transfer to another EU Member State. The argument of the appellants was that Article 28 (2) only justified detention where there was a significant risk of absconding.

On the first ground, the Court referred to a 2017 judgement by the Court of Justice of the European Union (CJEU) in the case of Al Chodor, which raised issues regarding detention conditions. This case set out a ‘framework of certain pre-determined limits’ for the deprivation of liberty under Article 6 of the ECHR. The Home Office’s criteria were found to fall short of this standard. In practice, this means that it is not permissible to detain persons for the sole reason that is a function of the transfer procedure. The legal presumption within the immigration rules, therefore, rests in favour of liberty from detention. On the second ground, it was held that domestic law of false imprisonment governs whether damages were payable in relation to detention.

Krisha Prathepan, of Duncan Lewis Solicitors, who represented two of the five men, told the Guardian that the case represented ‘a landmark judgment’ with ‘huge implications’ for those detained under Dublin III. ‘It is deeply concerning that the Home Office’s unlawful conduct may have led to the detention of so many people without any lawful basis. In effect, the Home Office has unlawfully detained hundreds or even thousands of individuals seeking international protection.’

In response, the Home Office said: ‘We are disappointed with the court’s ruling and are carefully considering the next steps.’