The Supreme Court has confirmed in the case of Hemmati v Secretary of State for the Home Department  UKSC 56 that the detention of asylum seekers for their removal to other EU states under the Dublin Regulation was unlawful between 1 January 2014 and 15 March 2017, when new regulations were belatedly adopted. There are no publicly available statistics on how many asylum seekers are detained for removal under the Dublin system, but we do know that around 10,000 “take back” requests were sent by the UK to other EU states during that time frame.
When the EU legislated specifically to protect those being transferred between member states under a new Dublin Regulation, and that regulation came into force on 1 January 2014, the UK failed to implement any new or specific protections. The Supreme Court finds that existing UK law was insufficient, making the detention of the claimants and all other Dublin detainees unlawful.
Lord Kitchin gives the sole judgment for the court. Damningly, he finds that the protections against arbitrary detention in UK law do not meet even the rather modest requirements of EU law. The only safeguards against arbitrary detention of a migrant in the UK are the principles established in the case of Hardial Singh and the Home Office policy set out in the Enforcement Guidance and Instructions (available here under the name Detention and Temporary Release). The Hardial Singh principles are not “objective criteria” addressing risk of absconding, neither was the Home Office policy and in any event the Home Office policy can be changed or withdrawn at any time. The policy lacks the certainty of a proper law.
Lord Kitchin goes on to hold that the claimants would be entitled to damages under EU law but that this is academic as they are also entitled to damages under domestic law, which is likely to result in a higher level of damages. Contrary to the submissions of the Home Office, the damages would be more than nominal. Damages were to be assessed at the county court.
Public law geeks will be interested to read paragraphs 75 to 79 of the judgment on the question of whether a statement of policy and the principle of public law adherence to that policy can ever amount to a binding provision of general application and therefore a “law”. The arguments of both sides are recited, with Lord Kitchen apparently leaning towards rejecting the proposition, but ultimately the court decided to leave that question for a case in which it was necessary to decide.
Jurisprudence geeks will add this judgment to their list of cases in which then Lord Justice Sales was overruled by his now-colleagues in the Supreme Court. Sales LJ had dissented in the Court of Appeal in a judgment notable principally for its length. He has been found to be wrong on all issues.
For me, the central point this judgment underlines is just how weak the protection against arbitrary detention really is in UK law. While those facing removal under the Dublin Regulation do now, since 2017, enjoy a slightly greater of clarity over the basis and reasons for their detention, this is limited to a small group of detainees and the protection lasts only so long as the UK remains part of the EU. All other detainees remain subject to the very weak protections that the Supreme Court held here to be inferior to EU law standards, which include no clear and objective criteria on what ought to be the central defining question in any assessment of whether to detain a migrant: whether it is really necessary to do so because of the risk he or she might abscond.
It is deeply concerning that the Home Office’s conduct has led to the detention of so many vulnerable people seeking international protection without any lawful basis. We ask that they urgently review all their detention policies.