The Court of Appeal has ruled that the regulations on the detention of asylum seekers subject to the Dublin III removal procedure comply with EU law.

Background: detaining migrants before return to another EU country

The International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017 (SI 2017 No. 405) were made in response to Case C-528/15 Policie CR etc v Al Chodor and others. In Al Chodor, the Court of Justice of the European Union held that the requirement that detention decisions be made using “objective criteria defined in law” in the Dublin III regulation meant legislation, not policy statements or case law.

As a result, last year the Court of Appeal decided that all detention under the Dublin III procedure before the 2017 Regulations came into force was unlawful (although the Home Office has been granted permission to appeal to the Supreme Court).

In Omar & Ors v Secretary of State for the Home Department [2019] EWCA Civ 207 the appellants argued that the 2017 Regulations are still not enough to comply with the Dublin III Regulation on two grounds. They said, firstly, that the regulations are not sufficiently detailed and leave discretion to the individual decision-maker on whether there is significant risk of absconding to justify detention. Secondly, that the regulations are disproportionate.

2017 regulations satisfy EU law

Lord Justice Davis rejected the first argument by ruling that the appellants had misunderstood the Dublin III Regulation. The requirement that there is a significant risk of absconding creates a discretion to detain the individual, rather than a test for mandatory detention:

Article 28 makes clear that the assessment (in an individual case) of the existence of a significant risk of absconding is but a necessary condition precedent to a decision to detain. But whether or not actually to detain remains a matter of discretion in each case: as the wording of Article 28(2) makes explicit (“where there is a significant risk of absconding, Member States may [emphasis added] detain…and only in so far as detention is proportional…”). This is critical to the way in which the measure works. And there is nothing whatsoever in the 2017 Regulations which goes against that. That matter of itself, as it seems to me, also disposes of Mr Fordham’s complaint that any one or more of the various criteria (a) – (k) in paragraph 4 would apply to almost all, or the great majority, of Dublin III individuals. Maybe they would. But the 2017 Regulations – in the interests of the asylum seeker – not only require a weighing of the relevant criteria but also do not in any way cut down the taking into account of all residual matters relating to the fairness and proportionality of actual detention.

The judge went on to dismiss the appellants proportionality arguments are mere “quibbles” with the content of the 2017 Regulations:

One only has to look at the matters set out in paragraph 4 (a) – (k) of the 2017 Regulation to see that they are all rationally and closely connected to an assessment of significant risk of absconding, and are not conducive to arbitrariness. They are also plainly objective. Mr Fordham raised some quibbles – and, with respect, quibbles are what they were – as to some of them. For example, he queried the relevance of (g) relating to ties with the United Kingdom. But one can readily see ways in which the presence of ties with the United Kingdom could properly bear on the assessment of risk of absconding. In fact, as recorded in the judge’s judgment at paragraph 59, Mr Fordham criticised every single one of the listed grounds (a) – (k) as too broad and/or insufficiently connected with a risk of absconding. For the reasons the judge gave, those criticisms are not tenable, whether taken individually or collectively. Nor, as I have said, is the overarching objection that such criteria would, between them, of themselves tend to encompass almost all potential Dublin III individuals such as to be of itself a valid legal objection.

This decision relies heavily on the fact that under Article 28(2) of the Dublin III Regulation the existence of a significant risk of absconding is only a pre-condition creating a power to detain, which then must be exercised proportionately and only when alternatives to detention will be ineffective. Those criteria are not referenced in the 2017 Regulations and there is a risk that Home Office officials treat the regulations as a tick-box exercise requiring detention when any of the factors that indicate a risk of absconding are present.

As was confirmed by the recently published EU Exit Regulations, one consequence of Brexit is the withdrawal of the UK from the Dublin III system, so this issue will soon become academic.