Supreme Court rules that large numbers of asylum seekers have been unlawfully detained


The Supreme Court, has made an important ruling which could mean that a large number of people have been unlawfully detained in immigration detention.  This post explains what happened in the Hemmati case, and what you can do if you think you have been affected.

If you have been affected then we may be able assist you to make a claim for compensation. You may be affected if you were subject to immigration detention under the ‘Dublin III Regulation’ powers at any point between January 2014 and 15th March 2017.  Please contact our Civil Liberties or Immigration departments for more information, use our contact form or call our office on 020 3909 8100.

Background to the case

The five applicants claimed asylum after arriving in the United Kingdom. They had all travelled to the UK through at least one other European Union (“EU”) member state in which they had already claimed asylum. In each case, the Home Office requested that the EU member states in question take responsibility for examining the applicants’ asylum claims in accordance with the ‘Dublin III Regulation’. This is an EU law which establishes procedures for transferring asylum seekers back to the first EU (or Associated Member) country which they entered.  That country is then responsible for dealing with the asylum seeker’s asylum claim.

Part of the ‘Dublin III Regulation’ (Article 28) allows for a person to be detained where there is a “significant risk of absconding”.  In 2015, the Home Office published a policy in relation to such detentions - Chapter 55 of the Enforcement Instructions and Guidance (“the EIG”).

Each of the applicants was detained for a period of time pending their removal from the UK. The applicants challenged the lawfulness of their detention by bringing claims against the Home Office.

The High Court dismissed the challenges of the first to fourth applicant, but the detention of the fifth applicant was found to have been unlawful. The first to fourth applicants appealed to the Court of Appeal.

In the case of the fifth applicant, the Home Office appealed to the Court of Appeal. By a majority, the Court of Appeal allowed the appeals of the first to fourth applicant and dismissed the Home Office’s appeal. The Home Office then appealed to the Supreme Court.

The Supreme Court’s decision

In a landmark judgment, the Supreme Court unanimously dismissed the Home Office’s appeal, ruling that all five detentions had been unlawful.

The Supreme Court’s judgment considered two main questions. First, was the detention of each applicant lawful? Secondly, if the detention was not lawful, is compensation payable under domestic law for false (or wrongful) imprisonment?

Lord Kitchin, giving the sole judgment on behalf of the Supreme Court, held that Chapter 55 of the EIG was unlawful as it did not provide, as should be required, an objective list of criteria for deciding when a person subject to a Dublin III transfer procedure may be at significant risk of absconding.

Therefore, Supreme Court held that the majority in the Court of Appeal were right to hold that the applicants were wrongfully detained.

The Home Office’s submission that the applicants should only be entitled to ‘nominal’ (very limited) compensation was also rejected. The Supreme Court held that the applicants were all entitled to compensation under domestic law for any loss that the wrongful detention had caused them. 

The Hemmati judgment can be found here.

If you think you may have been affected by this issue, get in touch with our Immigration and Civil Liberties teams today. You can also call our office on 020 3909 8100, or use our online contact form.

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