Article 2(n) of the Dublin III regulation provides:

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.

Readers of Free Movement will recall the judgment of the Court of Justice of the European Union in C-528/15 Al Chodor et ors that the criteria in Article 2n, read with Article 28(2) of Dublin III, require implementation in national law: the “presence of a legal basis, clarity, predictability, accessibility, and protection against arbitrariness”. A provision of general application, binding and foreseeable in that application, is required.

In Hemmati v Secretary of State for the Home Department [2019] UKSC 56 the Supreme Court held that UK law, prior to the adoption of the Transfer for Determination of an Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017 (SI 405/2017), did not meet the requirements of Article 2(n).

The question facing Ms Margaret Obi, sitting as a deputy High Court judge in R (Shirko Ismail) v Secretary of State for the Home Department [2019] EWHC 3192 were whether Mr Ismail’s detention fell within the scope of Article 28(1), and, if so, whether the Secretary of State had complied with Article 28 and the 2017 regulations, promulgated immediately after judgment was given in Al Chodor. She held that it did. People seeking asylum cannot be detained on the sole ground that transfer to another member state is imminent, or that there is a realistic prospect of transfer to another member state. A significant risk of absconding is also required (paragraph 49 of the judgment). Mr Ismail’s detention was for the sole purpose of effecting a transfer under the Dublin III regulation and was therefore unlawful.

That the detention was for this sole purpose was only established through the reading of a file note dated 11 May 2017 and the detention reviews. The former was obtained by the claimant through a subject access request; it was not served in the proceedings. The 21-day and 28- day detention reviews were disclosed but the 24-hour detention review was disclosed only at the hearing.

The judge records that the claimant had made a total of seven requests for disclosure, in circumstances where, given the duty of candour, it should not be necessary to make a request at all. She held:

Although I accept that no member of the SSHD’s legal team acted in bad faith, it is impossible to overstate the importance of the continuing duty of candour in judicial review proceedings. The trust and confidence upon which the duty of candour depends is undermined by the events which have occurred in these proceedings and can compromise the ability of the executive’s legal representatives to discharge their ethical and professional duties. Failures of this kind on the part of the executive are detrimental to the rule of law and can have repercussions beyond the individual case. […] I do not consider that the SSHD properly discharged her duty in this case and this is of particular concern given the nature of the claim and the vulnerable status of the Claimant. There can be no excuse for this poor compliance and it must be deprecated in the strongest possible terms. 

Those acting for the Secretary of State should be vigilant to see that the duty of candour has been complied with. As part of this, it is suggested that they very carefully review all disclosure, and that they ask to see all requests for documents made by the claimant’s solicitors, in whatever proceedings, and the responses, if any, given to such requests.

It is not enough, as this case illustrates only too well, to assume that the client has disclosed all documents. Counsel has their own duty to the court and must be pro-active in discharging it.

The judge departed from the (pre-Al Chodor) judgment of Mr Justice Garnham in R (Khaled) v Secretary of State for the Home Department (No 2) [2016] EWHC 1394 (Admin) and possibly, she acknowledged, from that of John Howell QC in S v Secretary of State for the Home Department [2017] EWHC 1295 (Admin), in holding that Article 28(1) applies only when detention is solely for the purpose of removal under Article 28(1).

Raza Husain QC, David Chirico and Stephen Knight, instructed by Duncan Lewis solicitors, acted for Mr Ismail.