C4/2018/1001 - 1004
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
MRS JUSTICE LAMBERT
Strand, London, WC2A 2LL
B e f o r e :
THE SENIOR PRESIDENT OF TRIBUNALS
LORD JUSTICE HICKINBOTTOM
| PESHAWA OMAR
HAMID REZA SALIMI DARANI
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Alan Payne (instructed by Government Legal Department) for the Respondent
Hearing date : 7th February 2019
Crown Copyright ©
Lord Justice Davis :
The Legal Framework
"The detention of applicants should be applied in accordance with the underlying principle that a person should not be held in detention for the sole reason that he or she is seeking international protection. Detention should be for as short a period as possible and subject to the principles of necessity and proportionality. In particular, the detention of applicants must be in accordance with Article 31 of the Geneva Convention. The procedures provided for under this Regulation in respect of a detained person should be applied as a matter of priority, within the shortest possible deadlines. As regards the general guarantees governing detention, as well as detention conditions, where appropriate, Member States should apply the provisions of Directive 2013/33/EU also to persons detained on the basis of this Regulation."
"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."
As for "risk of absconding", that is the subject of definition by Article 2(n), which provides as follows:
" '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."
" the elaboration of those criteria, in the context of that regulation, is a matter for national law."
It thus was held that:
" criteria such as those listed [sic] in art. 2 (n) of the Dublin III Regulation require implementation in the national law of each Member State."
"According to the European Court of Human Rights, any deprivation of liberty must be lawful not only in the sense that it must have a legal basis in national law, but also that lawfulness concerns the quality of the law and implies that a 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 (see to that effect, Del Rio Prada v Spain (470/09) (2014) 58 EHRR 37, §125). "
The Court then said this at paragraphs 40 to 42 of its judgment:
"40. It follows from the foregoing that the detention of applicants, constituting 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.
41. With regard to the first of those safeguards, it must be recalled that the limitation on the exercise of the right to liberty is based, in the present case, on art.28(2) of the Dublin III Regulation, read in conjunction with art.2(n) thereof, which is a legislative act of the EU. The latter provision refers, in turn, to national law for the definition of the objective criteria indicating the presence of a risk of absconding. In that context, the question arises as to what type of provision addresses the other safeguards, namely those of clarity, predictability, accessibility and protection against arbitrariness.
42. In that regard, as was noted by the Advocate General at AG63 of his Opinion, it is important that the individual discretion enjoyed by the authorities concerned pursuant to art.28(2) of the Dublin III Regulation, read in conjunction with art.2(n) thereof, in relation to the existence of a risk of absconding, should be exercised within a framework of certain predetermined limits. Accordingly, it is essential that the criteria which define the existence of such a risk, which constitute the basis for detention, are defined clearly by an act which is binding and foreseeable in its application."
"Consequently, the answer to the question referred is that art.2(n) and art.28(2) of the Dublin III Regulation, read in conjunction, must be interpreted as requiring Member States to establish, in a binding provision of general application, objective criteria underlying the reasons for believing that an applicant who is subject to a transfer procedure may abscond. The absence of such a provision leads to the inapplicability of art.28(2) of that regulation."
The 2017 Regulations
"Criteria to be considered when determining risk of absconding
4. When determining whether P poses a significant risk of absconding for the purposes of Article 28(2) of the Dublin III Regulation, the Secretary of State must consider the following criteria
(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 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 or consideration of their application for international protection under the Dublin III Regulation;
(f) whether P had 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 satisfactorily 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."
"These regulations set out the objective criteria which will be considered to determine whether a person who has claimed asylum in the UK, but whose application is subject to the Dublin III Regulation procedure, presents a significant risk of absconding for the purpose of considering whether they should be detained."
"The purpose of the criteria is to limit the basis upon which the determination of risk may be made; their existence provides sufficient guarantee in terms of legal certainty and ensures that the discretion enjoyed by the individual authorities responsible for applying the criteria for assessing the abscond risk is exercised within a framework of certain pre-determined markers."
But, that said, the court in Hemmati simply was not concerned with the issue of the lawfulness or quality of the content of paragraph 4 of the 2017 Regulations: see paragraph 98 of the judgment of Sales LJ.
The judgment of Lambert J
The arguments before this court
(1) Lawfulness by reference to the provisions of the Dublin III Regulation
"(1) 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 on immigration bail so as to frustrate transfer from the United Kingdom to another participating state; and
(2) Those grounds for belief arise on the basis that P has, without reasonable excuse:
(a) Previously failed to comply with reporting or residence conditions; and/or
(b) Previously used or attempted to use deception in relation to an immigration application or claim for asylum; and/or
(c) Failed to give reliable answers to enquiries regarding P's immigration status."
"The police shall decide to detain a foreign national for the purpose of his transfer to a State bound by directly applicable legislation of the European Union only if there is a significant risk of absconding. There is considered to be a significant risk of absconding in particular where the foreign national has stayed in the Czech Republic illegally, has already previously avoided transfer to a State bound by directly applicable EU legislation, or has attempted to abscond or expressed an intention not to comply with a final decision to transfer him to a State bound by directly applicable EU legislation, or if such an intention is apparent from his behaviour. There is also considered to be a significant risk of absconding where a foreign national who is to be transferred to a State bound by directly applicable EU legislation which is not immediately adjacent to the Czech Republic cannot lawfully travel to that State independently and cannot provide the address of a place of residence in the Czech Republic."
1) First, as I have already emphasised, the Dublin III Regulation has left it to Member States to set out in national law their own objective criteria. Thus a wide measure of discretion has been conferred on Member States as to how they give effect to the requirements of Article 28 read with Article 2(n). The 2017 Regulations are thus an instrument designed to implement and give effect to European law, in the form of the Dublin III Regulation, which has itself given a measure of discretion as to content in that regard.
2) Second, it must also be emphasised again that the objective of the Dublin III Regulation is not just to afford enhanced protection to asylum seekers potentially within its ambit. It is also indeed centrally so to ensure the efficiency of operation of the procedures under which the appropriate Member State is to take responsibility and for that purpose to prevent frustration of such procedures by (for example) absconding. True it is that the 2017 Regulations are geared to the assessment of a significant risk of absconding as a precursor to any potential decision to detain. But the wider objectives have to be borne in mind.
3) Third, it is also essential to bear in mind that, for the reasons given above, fulfilment of some or all of the objective criteria does not mandate a decision to detain. Any decision to detain is evaluative and discretionary: and is a decision which, by its nature and as Article 28(2) confirms, is itself required to meet requirements of proportionality and not to be exercised where other less coercive effective measures are available.
The Senior President of Tribunals:
Lord Justice Hickinbottom: