Al Chodor and Others (C-528/15)

In a highly significant judgment the CJEU has shown, in effect, that the Home Office has unlawfully detained hundreds or even thousands of individuals seeking international protection.

The background facts

The Al Chodor family are Iraqi nationals. They travelled to the Czech Republic and were subject to a police check in May 2015. During their police interview, they stated that they had fled Iraq via Turkey to Greece. They had continued their journey and were stopped by police in Hungary, where they made an asylum application.

The Czech Foreigners Police Section was of the view that they posed a serious risk of absconding whilst in the Czech Republic. They were therefore placed in detention pending their transfer back to Hungary for determination of their asylum claim.

The Al Chodor family brought an action against the decision on the ground that Czech legislation does not provide objective criteria for assessing the risk of absconding within the meaning of Article 2(n) of the Dublin III Regulation (“Dublin III”, which is reproduced below.) In the Czech Republic, settled case-law and administrative practice provided the criteria for assessing the risk of absconding. There was no legislation outlining the criteria for assessment.

The action was successful. That judgment was appealed to the Supreme Administrative Court. The Supreme Administrative Court referred the case to the CJEU.

The question for the Court

The CJEU was asked to determine the meaning of Article 2(n) of Dublin III. Article 2(n) provides:

(n)      “risk of absconding” means the existence of reasons in an individual case, which are based on objective criteria defined by law, to believe that an applicant or a third-country national or a stateless person who is subject to a transfer procedure may abscond.’ (emphasis added)

The question for the CJEU centred on the meaning of “objective criteria defined by law.” It is well summarised in the Opinion of Advocate General Saugmandsgaard Øe:

the referring court is asking, in essence, whether the requirement, mentioned in article 2(n) of the Dublin III Regulation, that the objective criteria for assessing whether there is a risk of absconding must be defined ‘by law’ means that legislation must be adopted, or whether that requirement may also be satisfied if such criteria are apparent from the case-law of the higher courts and/or from the administrative practice of a Member State.

The legal framework

First, the Court observed that Article 5 ECHR provides that:

1. Everyone has the right to liberty and security of person No one shall be deprived of his liberty save in the following cases an in accordance with a procedure prescribed by law:

… (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

The same right to liberty and security of person is provided for by article 6 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

Article 2(n) is to be read in conjunction with Article 28 of Dublin III which provides that:

1. Member States shall not hold a person in detention for the sole reason that he or she is subject to the procedure established by this Regulation.

2. When there is a significant risk of absconding, Member States may detain the person concerned in order to secure transfer procedures in accordance with this Regulation, on the basis of an individual assessment and only in so far as detention is proportional and other less coercive alternative measures cannot be applied effectively.

3. Detention shall be for as short a period as possible and shall be for no longer than the time reasonably necessary to fulfil the required administrative procedures with due diligence until the transfer under this Regulation is carried out.

The judgment

First, the CJEU observed that while the French- and German-language versions of Dublin III require a definition of the objective criteria laid down “in legislation”, other language versions require a definition of the criteria “by law (in the general sense).” It is therefore not possible to work out whether legislation is required from the wording of Dublin III alone.

The Czech government argued that a regulation is directly applicable in a member state, and therefore does not require transposition into national law.

The Court disagreed, finding that some provisions require the adoption of measures of application by member states for their implementation. Article 2(n) is one such provision. Neither the regulation nor another EU legal act establish the criteria, and therefore it is a matter for national law.

Therefore the Court held that the criteria in Article 2(n) require implementation in national law.

What kind of national law?

But what kind of national law is necessary to establish the criteria in the way required by Article 2(n)? The crux of this point was whether case-law and administrative practice could suffice, or whether national legislation is needed.

First, the Court observed it is necessary when interpreting a provision of EU law to consider both its wording and the context in which it occurs, including the objectives of the rules as a whole.

Second, the court noted that Dublin III is intended to make improvements both to the effectiveness of the Dublin system and to the protection enjoyed by asylum seekers. This is evident from the fact that the recast Dublin III Regulation contains provisions relating to detention, whereas its predecessor did not.

Detention under Article 2(n) constitutes a limitation on the exercise of the fundamental right to liberty under Article 6 of the Charter. Therefore the limitation must be provided for by law, respect the essence of the right and be subject to the principle of proportionality under Article 52(1) of the Charter. The Court also noted that according to the ECtHR, any deprivation of liberty must be lawful in the sense that it must have a legal basis in national law. Lawfulness also concerns the quality of the law, and implies that the national law authorising the deprivation of liberty must be sufficiently accessible, precise and foreseeable in its application in order to avoid all risk of arbitrariness. Further, a core objective of the article 6 of the Charter and article 5 of ECHR safeguards is the protection against arbitrariness.

The Court held that it follows from the above that detention of applicants, which constitutes a serious interference with those applicants’ right to liberty, is subject to compliance with strict safeguards, namely the “presence of a legal basis, clarity, predictability, accessibility, and protection against arbitrariness.”

The Court echoed the Advocate General’s point that the authorities’ discretion to detain should be exercised within a framework of certain predetermined limits. It is therefore essential that the criteria be defined clearly by an act which is binding and foreseeable in its application. Only a provision of general application could meet the requirements of clarity, predictability, accessibility and, in particular, protection against arbitrariness.

The Court held that it followed that Article 2(n) and Article 28(2) of Dublin III, read together, must be:

interpreted as requiring that the objective criteria underlying the reasons for believing that an applicant may abscond must be established in a binding provision of general application. In any event, settled case-law confirming a consistent administrative practice on the part of the Foreigners Police Section, such as in the main proceedings in the present case, cannot suffice.

Where such a provision is absent, the detention must be declared unlawful.

The old position

The judgment is damning for the UK Government. This is because, as in the Czech Republic, the criteria used by the Home Office to determine whether someone posed a serious risk of absconding have been laid out in case law rather than legislation.

The test applied to detention pending removal under Dublin III was that laid down in Hardial Singh [1983] EWHC 1 (QB), as summarised by Lord Dyson in Lumba v SSHD [2011] UKSC 12

1. The Secretary of State must intend to deport the person and can only use the power to detain for that purpose.
2. The deportee may only be detained for a period that is reasonable in all the circumstances.
3. If before the expiry of the reasonable period it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention.
4. The Secretary of State should act with the reasonable diligence and expedition to effect removal.

It is now clear that the application of that test or former Home Office policy to individuals subject to removal under Dublin III was unlawful. Greg Ó Ceallaigh of Garden Court Chambers points out the importance of the judgment:

The decision in Al Chodor is highly significant. It shows, in effect, that the Home Office policy in respect of Dublin III detainees has been unlawful since the Regulation came into force. The Home Office repeatedly (and successfully) argued that the Regulation was not directly effective, or that Article 28 was a power that was additional to her ordinary detention powers, or that it added nothing to Hardial Singh.

All of those arguments have now been shown to be completely unfounded. Indeed the introduction of the Transfer for Determination of an Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017 amounts in effect to an acknowledgement that hundreds, if not thousands of people were detained unlawfully be the Home Office.

The UK Government’s response

In response to the judgment, the Secretary of State for the Home Department has published immediately the Transfer for Determination of an Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017.

These Regulations, effective from 15 March 2017, lay down the criteria to be considered when determining the risk of absconding. The breadth of the criteria now to be applied in decisions to detain a person to be subject to a removal under Dublin III is striking:

(a) whether P has previously absconded from another participating State prior to a decision being made by that participating State on an application for international protection made by P, or following a refusal of such an application;

(b) whether P has previously withdrawn an application for international protection in another participating State and subsequently made a claim for asylum in the United Kingdom;

(c) whether there are reasonable grounds to believe that P is likely to fail to comply with any conditions attached to a grant of temporary admission or release or immigration bail;

(d) whether P has previously failed to comply with any conditions attached to a grant of temporary admission or release, immigration bail, or leave to enter or leave to remain in the United Kingdom granted under the Immigration Act 1971, including remaining beyond any time limited by that leave;

(e) whether there are reasonable grounds to believe that P is unlikely to return voluntarily to any other participating State determined to be responsible for consideration of their application for international protection under the Dublin III Regulation;

(f) whether P has previously participated in any activity with the intention of breaching or avoiding the controls relating to entry and stay set out in the Immigration Act 1971;

(g) P’s ties with the United Kingdom, including any network of family or friends present;

(h) when transfer from the United Kingdom is likely to take place;

(i) whether P has previously used or attempted to use deception in relation to any immigration application or claim for asylum;

(j) whether P is able to produce satisfactory evidence of identity, nationality or lawful basis of entry to the UK;

(k) whether there are reasonable grounds to consider that P has failed to give satisfactory or reliable answers to enquiries regarding P’s immigration status.

The publication of these regulations might well be interpreted as tacit admission by the Government that without such regulations the detention of asylum seekers facing Dublin removal to anther EU Member State would be unlawful.

Dublin detention going forward

Practitioners will be familiar with the content of the new Regulations. Each of the factors to consider are common considerations in disputes surrounding detention pending removal. However, explicit reference to the criteria laid out is now necessary in actions engaging Article 2(n) and Article 28.

The new Regulations may lead to a more comprehensive consideration of the application of an individual’s circumstances to the new criteria.

Consequences for people detained under the old test

The Home Secretary’s publication of new Regulations will avoid the release of anyone held under the old rule. However it does not change the fact that those who were held were held unlawfully.

Those seeking damages for their unlawful detention may struggle to succeed to recover more than nominal damages. This is because the Court is likely to take an approach which asks what the consequence would have been had the Secretary of State acted lawfully.

The Regulations require decision-makers to assess detention cases in much the same way as they were under the old rules. It is unlikely that someone who was detained under the old unlawful practice would not be so detained were the criteria objectively defined by law as we now know Article 2(n) requires. The ‘lawful approach’ is simply too similar in substance to the old unlawful approach to lead to either the release of, or awarding of damages to, those unlawfully detained under the old approach in most cases.