27 Jan Thousands of asylum seekers potentially entitled to compensation for unlawful detention following Supreme Court ruling
On 27 November 2019, the Supreme Court unanimously upheld a decision of the Court of Appeal that the detention of asylum seekers between 1 January 2014 and 15 March 2017 pending removal to another EU state under the Dublin III Regulation was unlawful. This is likely to affect thousands of individuals who were unlawfully detained during this period and are therefore entitled to damages.
The case of R(Hemmati and others) v SSHD  UKSC 56 was brought by five individuals (the “Claimants”), represented by Duncan Lewis Solicitors, who had all claimed asylum after arrival in the UK. Each had been detained for a period of time of between one and four months pending their removal from the UK to another EU state pursuant to the ‘Dublin III Regulation’.
Under the Dublin Regulations, asylum seekers are required to claim asylum in the first EU country they reach. If someone is found through the Eurodac database to have had their fingerprints taken in another EU country, they can therefore be sent back to that country to have their asylum claim processed.
The Dublin III Regulation prohibits detention of an asylum seeker who is due to be transferred to another EU country, unless there is a “significant risk of absconding”, in other words, where there is a good reason to think it is likely that someone would stop contacting the Home Office if they were not detained. However, between the coming into force of the Dublin III Regulation on 1 January 2014 and 15 March 2017 (when the UK finally introduced legislation setting out the criteria for establishing the risk of absconding), the Home Office routinely detained Dublin III asylum seekers.
The Government’s policy in relation to detention pending removal is set out in Chapter 55 of the Enforcement Instructions and Guidance (23 October 2015). The Supreme Court reaffirmed the decision of the Court of Appeal that this policy was inadequate as persons subject to Dublin III could not know in advance which criteria would be used for the basis of an assessment of whether they were likely to abscond.
As a result, the Supreme Court found that detention of each of the Claimants was unlawful and they were entitled to compensation for any loss that the wrongful detention had caused them. The Court rejected the Home Office’s submission that the Claimants should only be entitled to minimal damages.
This is a really important judgment because it means that those detained for the purposes of Dublin III removal between 1 January 2014 and 15 March 2017 are likely to have been unlawfully detained and therefore entitled to damages. The precise number of asylum seekers affected by the ruling is not known. However, it is likely that a large number of individuals will have been unlawfully detained, many of whom will be survivors of torture or human trafficking and may have faced re-traumatisation as a result of their detention; and some of whom have, since their detention, been granted refugee status by the UK. It is hoped that the Government will reflect on this ruling and undertake an urgent review of immigration detention, which routinely causes misery to vulnerable people seeking sanctuary in the UK.