QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (OMAR and others)
|- and -
|SECRETARY OF STATE FOR THE HOME
Mr Alan Payne (instructed by Government Legal Department) for the Defendant
Hearing date: 1st and 2nd February 2018
Crown Copyright ©
Mrs Justice Lambert:
"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. 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".
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, on the basis of 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 transfer can be carried out". This provision then sets out a series of time-limits for the various elements of the process.
4. As regards detention conditions and the guarantees applicable to persons detained, in order to secure the transfer procedures to the Member State responsible, Articles 9, 10 and 11 of Directive 2013/33/EU shall apply.
"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 stateless person who is subject to a transfer procedure may abscond".
"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(b) whether P has previously withdrawn an application for international protection in another participating State and subsequently made a claim for asylum in the United Kingdom;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 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."
"Under article 28 of the Dublin III Regulation, a person who has made an application for international protection may only be detained where they present a significant risk of absconding. Article 2(n) provides that "risk of absconding" means the existence of reasons in an individual case, which are based on objective criteria defined by law, to believe that the individual who is subject to a transfer procedure may abscond. 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."
i) that the purpose of the 2017 Regulations was to "place on the face of legislation, objective criteria for determining when an individual poses a risk of absconding with reference to the provisions in .. the Dublin III Regulation;"
ii) that the urgency arose from the handing down of the ruling by the CJEU in Al Chodor; given the terms of the ruling, the urgency could not be avoided "due to the adverse impact of delay on the ability of the Secretary of State to detain third-country nationals or stateless person in order to transfer them;"
iii) having considered the implications of the ruling the Home Office is making these Regulations in order to reflect in legislation "the current policy and administrative practice as to the criteria which should be considered to determine whether an individual who is subject to the Dublin III procedures poses a significant risk of absconding."
The Claimants' Submissions
i) Regulation 4(a): (previous absconding from a participating State before an application for asylum has been considered or following a refusal by the participating State of such an application). This provision would apply to all, or virtually, all of those subject to the Dublin procedures. The criterion is too expansive. It undermines the high level of protection as required by Dublin III.
ii) Regulation 4(b): (previous withdrawal of an application for asylum in another participating state and subsequent claim for asylum in the UK). This provision is again too broad. Anyone who enters the UK unlawfully will be caught by this criterion; this will include the vast majority of people subject to the Dublin III procedure.
iii) Regulation 4(c) and (d): (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" and "failed to comply with such conditions previously". Mr Fordham argues that there is a wide range of conditions and a wide range of ways in which a person may fail or have failed to comply with a condition. Such conditions might for example relate to employment or study which have no relationship or bearing upon whether the person poses a risk of absconding. The only conditions which it would be appropriate to take into account if breached would be those which provide objective grounds for believing that the individual will act non-compliantly so as to frustrate transfer. The Regulation makes no allowance for reasonable excuse for non-compliance. Non-compliance with a reasonable excuse could not demonstrate a significant risk of absconding.
iv) Regulation 4(e): (reasonable grounds to believe that P is unlikely to return voluntarily to any other participating State). The criterion is irrelevant and insufficiently linked to the risk of absconding. The fact that a person does not choose to leave the UK does not mean that he/she will abscond to avoid being required to leave.
v) Regulation 4(f): (previous participation in an activity with the intention of breaching entry and stay controls). Many Dublin III migrants would fall within this category. It is too broad in scope.
vi) Regulation 4(g): (ties with the UK). This criterion is too expansive. It does not explain whether or how existence of ties in the UK increases or decreases the prospect of a person absconding so as to make transfer impossible.
vii) Regulation 4(h) (the timing of transfer from the UK). This factor is generic, neutral and imprecise. It does not establish imminence or any degree of imminence.
viii) Regulation 4(i): (previous use of deception in relation to any immigration application or claim for asylum). It is argued that this factor is too broadly drawn and does not allow for reasonable excuse.
ix) 4(j): (production of satisfactory evidence of identity, nationality or lawful basis of entry to the UK). This criterion is too broad. It would capture most Dublin III migrants. It does not permit for reasonable excuse.
x) 4(k): (failure to give satisfactory answers to enquiries concerning immigration status). This factor is too broad. It would capture most Dublin III migrants and permits for no reasonable excuse.
"A significant risk of absconding is present only where the following are satisfied:
(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 Defendant's Submissions
i) Dublin III migrants
ii) Absence of allowance for reasonable excuse
i) Whether the objective criteria listed in domestic legislation must be (a) mandatory and (b) exhaustive. If so, whether the 2017 Regulations satisfy these requirements.
ii) Whether the substance of each of the criteria is sufficiently and rationally connected with the risk of absconding and the linked issue of whether the criteria are too broad and imprecise. This underlies the different formulations of the nature of the objective criteria proposed by Mr Fordham and Mr Payne. Mr Fordham described the need to implement into domestic law a set of criteria which "define the existence of the risk of absconding, or significant risk of absconding". Mr Payne preferred the formulation that the criteria should "form the basis of a decision as to the risk of absconding." The difference between them is directed at the connection between the substance of the criteria and the risk of absconding. On Mr Fordham's formulation, the criteria and the risk of absconding must be directly linked. On Mr Payne's formulation, factors which are relevant to the abscond risk, but not so directly linked are still lawful provided that when applied they form the basis for a reasoned risk assessment.
"While Member States enjoy a wide discretion in determining such criteria they should take into due account the following ones as an indication that an illegally staying third country national may abscond:• Lack of documentation
• Lack of residence, fixed abode or reliable address
• Failing to report to authorities
• Explicit expression of intent of non-compliance with return related measures
• Existence of conviction for a criminal offence
• Ongoing criminal investigations and proceedings
• Non-compliance with a return decision
• Prior conduct (ie escaping)
• Lack of financial resources
• Being subject to a return decision issued by another Member State
• Non-compliance with the requirement to go to the territory of another Member State
• Illegal entry into the territory of the EU member states and of the Schengen Associated countries.
National legislation may establish other objective criteria to determine the existence of a risk of absconding.
i) Mr Fordham argues that 4(a) and (b) are unlawful as they are too broad and expansive and would capture the vast majority of Dublin III migrants. I do not accept the argument that the fact that the immigration history of the vast majority of Dublin III migrants may demonstrate features which are caught by the criteria renders them unlawful. See above. A person's absconding history and a previous withdrawal of an asylum claim in another state (demonstrating a determination to reach the UK) are rationally connected with the risk of absconding.
ii) I do not accept Mr Fordham's argument that 4(c) and (d) are too broadly drawn and are not sufficiently linked to the risk of absconding. A history of non-compliance (in any immigration respect) is in my judgment sufficiently connected to the "existence of a risk" of absconding. It would then be necessary to consider whether, if either or both of the criteria were fulfilled, the risk of absconding is judged to exist when considered in the individual context and whether if so the risk was significant and detention necessary. The nature of the condition(s) which had been breached and whether or not there was an explanation or reasonable excuse would be relevant to these further inquiries.
iii) 4(e): I reject Mr Fordham's argument that a finding that a person who is found to be unlikely to return voluntarily to any other state is not sufficiently rationally connected with a risk of absconding. It is common sense that a person who refuses to return to another state on a voluntary basis may pose a risk of absconding. Again, whether the risk in fact is judged to exist and if so whether the risk is a significant one and whether other less coercive measures may suffice to address the risk are not the purpose of the objective criteria.
iv) 4(f): I reject the argument that this provision is unlawful on the basis that it would capture the vast majority of Dublin III migrants (see above).
v) 4(g): Mr Fordham criticises this criterion on the basis that it does not explain whether and how the ties to the UK increase or decrease the prospect of absconding. I accept that the criterion does not spell out the implications of the presence of ties. However, it is common sense that the presence of family or other ties in the UK may be a reason for the person absconding to avoid transfer away from the UK. However, as I have said above, the criteria must be satisfied before it can be determined that there is a risk of the basis which the criteria provide. Whether the risk exists is still (and separately) to be determined having regard to the subjective fact-based aspect of the process; in other words, on the basis of all of the circumstances. To suggest that, within each criterion, the various permutations of facts which tend towards the risk existing or which go the other way would defeat the purpose of the objective criteria, which is to provide a limited series of bases upon which the risk of absconding is to be determined whilst permitting the application of those criteria to each applicant on a case by case basis taking into account "all of the individual, specific circumstances which characterise each applicant's situation" (Al Chodor, [AG60]). I do not therefore accept that the criterion is too expansive.
vi) 4(h): I do not accept that the imminence of the person's removal from the UK is "generic, neutral and imprecise" or, putting it another way, is too expansive and undefined. Mr Payne informed me that there is good evidence that the likelihood of a person absconding increases the closer to the planned date for transfer. I accept this. Again, it chimes with common sense that those facing an immediate and close threat of transfer are more likely to abscond to avoid transfer. I repeat the point which I have made above however: the fact that the criterion is satisfied does not mean that the person would, following an individual assessment, be judged to pose such a risk, let alone a significant risk which requires detention as a necessary means of giving effect to a Dublin transfer. However, I find that there is a rational connection between the criterion and the risk of absconding.
vii) 4(i)-(k): I do not accept that evidence of previous use of deception in relation to an immigration or asylum claim is too broadly drawn or insufficiently connected with a risk of absconding to comply with the requirement of Dublin III. Nor that a failure to produce satisfactory evidence of identity, nationality or lawful basis of entry or failure to give satisfactory answers to enquiries are too broad. I find that these factors are rationally connected to the existence of the risk of absconding. I repeat what I have said above. If the criteria are satisfied then it does not follow that the decision-maker would or should conclude that the risk exists, or if it does exist that the risk is a significant one or that detention is necessary and proportional which are all separate judgments to be made by the decision maker.