Peshawa Omar v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Davis,Lord Justice Hickinbottom |
| Judgment Date | 21 February 2019 |
| Neutral Citation | [2019] EWCA Civ 207 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2018/0998 – 0999 C4/2018/1001 – 1004 |
| Date | 21 February 2019 |
[2019] EWCA Civ 207
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
MRS JUSTICE LAMBERT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Davis
THE SENIOR PRESIDENT OF TRIBUNALS
and
Lord Justice Hickinbottom
Case No: C4/2018/0998 – 0999 C4/2018/1001 – 1004
Michael Fordham QC, David Chirico and Stephen Knight (instructed by Duncan Lewis Solicitors) for the Appellants
Alan Payne (instructed by Government Legal Department) for the Respondent
Hearing date: 7th February 2019
Approved Judgment
Introduction
In the immediate aftermath of the decision of the European Court of Justice (Second Chamber) in Policie CR etc v Al Chodor and others (Case C-528/15; [2017] 3 C.M.L.R. 24) (“ Chodor”) the Transfer for Determination of an Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017 (“the 2017 Regulations”) were made and came into force on 15 March 2017. By these Judicial Review proceedings the claimants, as part of the relief sought, say that the 2017 Regulations are, and from inception have been, unlawful. It is said that they fail lawfully to implement and give effect to the requirements of Regulation (EU) No. 604/2013 of the European Parliament and of the Council (“the Dublin III Regulation”): which is designed to establish the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third country national or stateless person. The claimants also, in the alternative, say that the criteria set out in the 2017 Regulations are unlawful on grounds of want of proportionality.
The question of the lawfulness of the 2017 Regulations was on 27 September 2017 directed by Lavender J to be heard in effect as a preliminary issue. The proceedings brought variously by these claimants have otherwise in the interim been stayed. The matter came before Lambert J. Following a two day hearing in the Administrative Court the judge, in a careful and thorough reserved judgment handed down on 28 March 2018, rejected the claimants' contentions. She concluded that the 2017 Regulations were lawful.
The claimants now appeal to this court, with permission granted by the judge. Before us, as below, the claimants (appellants) were represented by Mr Fordham QC, Mr Chirico and Mr Knight; and the Secretary of State for the Home Department (respondent) was represented by Mr Payne.
Background
The factual background needs, for present purposes, only the barest outline. All of the claimants are adults. All are third-country nationals. All at various times in 2017 entered the United Kingdom unlawfully, for the most part travelling in the back of a lorry. All in due course were to claim asylum.
Eurodac searches were made with regard to each. Those revealed that all had previously had their finger prints taken in another Member State, in some instances in more than one Member State: and some had also previously claimed asylum in another Member State. As the judge noted, the immigration history of each claimant demonstrates features typical of migrants prospectively subject to the Dublin III Regulation procedures.
Requests were made to the relevant Member State to take back the relevant claimant under Article 18(1) of the Dublin III Regulation. These were accepted or deemed to be accepted. At various stages the claimants were detained pending prospective removal to the relevant Member State. Removals have not been effected, however, and each of the claimants has subsequently been released from detention, with reporting conditions. Some of the claimants have in their proceedings challenged the decision to remove them to another Member State and all have challenged the decision to detain them for the purposes of such removal. That challenge extends to the lawfulness of the 2017 Regulations. The matter has proceeded on the footing that the detention in each of the cases occurred after the 2017 Regulations came into force.
The Legal Framework
The Dublin III Regulation itself came into effect on 1 January 2014. It both supersedes and is significantly different from its predecessor regulation, the Dublin II Regulation: Council Regulation (EC) No. 343/2003. The initial draft had been the subject of an Explanatory Memorandum, to which we were referred. The broad objective in departing in significant respects from the Dublin II Regulation was stated to be, first, to enhance the efficiency of the system put in place and, second, to ensure that the needs of individual applicants were comprehensively addressed under the procedure for determination of responsibility. It was stressed that there was a need to guarantee effective and speedy access to procedures for determining refugee status whilst preventing abuse of such procedures by the lodging of multiple claims in a number of Member States. The main aim of the proposal was summarised as: “to increase the system's efficiency and to ensure higher standards of protection for persons falling under the Dublin procedure.”
Recital (20) of the Dublin III Regulation provides as follows:
“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.”
The Dublin III Regulation then sets out various provisions. Of central importance to the present appeal is Article 28. That, under the heading “Detention”, provides in the relevant respects as follows:
“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.”
It was the interpretation of aspects of the provisions of Article 28 read with Article 2(n) which was before the Court of Justice in Chodor. That case is very important context: because it was the decision in Chodor which prompted (on the same day that the decision in Chodor was handed down) the making of the 2017 Regulations – albeit they doubtless had been prepared in advance on a contingency basis. Moreover, Chodor does not necessarily simply provide context. For it is the claimants' contention that aspects of the reasoning in Chodor bear directly on the issue of the lawfulness of the 2017 Regulations: albeit Mr Fordham said that his argument did not wholly depend on the reasoning in Chodor and that it ultimately founded itself on the proper interpretation and application of Article 28 read with the definition contained in Article 2(n) of the Dublin III Regulation.
Chodor
It is therefore very important to assess just what it was that Chodor was actually concerned to decide.
It is clear that the true point in issue, as spelled out in the request by the Czech court for a ruling, was as to what was connoted by “objective criteria defined by law”, as specified in Article 2(n) of the Dublin III Regulation. In particular, did the phrase “by law” mean that legislation or a “national law” must be adopted? Or would it suffice if the criteria were apparent from the case law of the courts and/or the administrative practice of the Member State in question? See paragraph AG4 of the opinion of the Advocate General and paragraph 24 of the judgment of the Court.
At paragraph 28 of the judgment of the Court, it was noted that the “objective criteria” had been set out neither in the Dublin III Regulation nor in any other EU legal act. It followed that:
“…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.”
After referring to the “high level of protection” afforded to applicants under the Dublin III Regulation and after referring to related matters, the Court said this at paragraph 38:
“According to the European Court of Human Rights, any...
To continue reading
Request your trial
-
R (on the application of Mark Harrison) v Secretary of State for Justice
...1 WLR 1911; Lord Wilson JSC at para 26); or a “significant risk of absconding” ( R (Omar) v Secretary of State for the Home Department [2019] EWCA Civ 207; [2019] 1 WLR 3981; Davis LJ at paras 44 – 45); or a “significant risk to members of the public of serious harm” ( R v Pedley [2009] E......
-
Mr P R Ahmed v G4S Secure Solutions (UK) Ltd: 2203713/2021
...for the information to be actually true (see Darlington v University of Surrey 2003 IRLR133, EAT. 6.20 In Ibrahim v HCA International 2019 EWCA civ 207 the Court of Appeal suggested the mental element imposes a two stage test: (i) did the claimant have a genuine belief at the time that the ......
-
Mr S Patka v British Broadcasting Corporation and others: 2206338/2021
...for the information to be actually true (see Darlington v University of Surrey 2003 IRLR133, EAT. 6.14 In Ibrahim v HCA International 2019 EWCA civ 207 the Court of Appeal suggested the mental element imposes a two-stage test: (i) did the claimant have a genuine belief at the time that the ......
-
Mr S Patka v British Broadcasting Corporation and others: 2206338/2021
...for the information to be actually true (see Darlington v University of Surrey 2003 IRLR133, EAT. 6.14 In Ibrahim v HCA International 2019 EWCA civ 207 the Court of Appeal suggested the mental element imposes a two-stage test: (i) did the claimant have a genuine belief at the time that the ......