SS, R (On the Application Of) v Secretary of State for the Home Department & Anor

Detention to secure a transfer under Dublin III is governed by article 28 even where the domestic power of detention is found in immigration legislation. Article 28 confers a directly effective power and imposes enforceable limits. Detention requires a significant risk of absconding, assessed by reference to objective criteria defined in a binding provision of general application. Without such criteria, detention for that purpose is unlawful.

The legality of detention normally turns on whether the authority made a manifest and material error of assessment. This includes assessment of risk, proportionality, alternative measures and, where relevant, whether the detainee is a child. For disputed age under Part III of the Children Act 1989, the court determines the issue on the balance of probabilities.

The claimant, an Afghan asylum seeker, was detained after entering the United Kingdom and was considered for transfer to Germany under Dublin III. He claimed to be 16. Oxfordshire County Council assessed him as an adult on two occasions.

He sought judicial review of his detention and the age assessments. The central issues were whether article 28 governed detention carried out under paragraph 16 of Schedule 2 to the Immigration Act 1971, whether its safeguards were directly enforceable, the proper standard for reviewing the age-related assessment, and whether the claimant was a child when detained and assessed.

1. Detention. Article 28 of Dublin III governs detention undertaken to secure transfer procedures under that Regulation. It is not displaced merely because domestic legislation also authorises detention. Article 28 is concerned with that particular purpose and does not govern detention undertaken for unrelated purposes.

2. Article 28 confers a directly effective power to detain, subject to its conditions. National legislation may identify the authority exercising the power or accommodate the Regulation within domestic law, but it cannot conceal the EU-law nature of the power or enlarge the circumstances in which detention is permitted. The claimant could therefore rely directly on article 28.

3. Under article 28(2), detention requires a significant risk of absconding, an individual assessment, proportionality and the ineffectiveness of less coercive measures. Under article 2(n), objective criteria for the risk of absconding must be defined in a binding provision of general application. In the absence of such criteria, article 28(2) is inapplicable and detention for the Dublin transfer purpose is unlawful. The reasoning in Khaled v Secretary of State for the Home Department on the domestic power and direct effect could not stand in light of Policie CR v Salah Al Chodor.

4. The legality of detention under article 28 is generally reviewed by asking whether the relevant authority made a manifest and material error of assessment. That approach applies to evaluations such as risk of absconding, proportionality, alternative measures and the exceptional detention of an unaccompanied minor. It also applies to treating a disputed-age person as an adult for the purposes of article 28 where the assessment involves informed judgment on complex facts.

5. The claimant’s detention was unlawful because it was undertaken to secure Dublin transfer procedures and conflicted with article 28(1) and/or article 28(2). At the relevant time there were no binding objective criteria for assessing the risk of absconding.

6. For the purposes of Part III of the Children Act 1989, the court determines disputed age on the balance of probabilities, considering all available evidence, including a local authority assessment. The claimant had not shown that he was a child when detained or assessed. His material inconsistencies about his education and age were not adequately explained by trauma, mistranslation or poor recollection, and his appearance and demeanour supported the adult assessment.

7. The claimant was not a child when detained or when assessed by Oxfordshire County Council. The claim accordingly succeeded only in relation to the unlawfulness of detention.

First-instance judicial review claim. No prior appellate decision in the same proceedings is stated.