Omar & Ors, R (On the Application of) v Secretary of State for the Home Department

Objective criteria governing detention under the Dublin III Regulation must be mandatory and exhaustive, but they need not themselves establish that a significant risk of absconding exists. They must provide a rational and sufficient basis for assessing whether such a risk may exist.

The criteria operate only at the first stage of an individual assessment. Satisfying one or more criteria does not establish a risk of absconding, its significance, or the necessity and proportionality of detention. Those questions require separate judgments based on all the individual circumstances, including any reasonable explanation for conduct relied upon.

Six asylum seekers challenged decisions to transfer them to other EU member states under the Dublin III Regulation and to detain them pending transfer. They also challenged the lawfulness of the Transfer for Determination of an Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017.

Lavender J directed that the challenge to the 2017 Regulations proceed as a rolled-up hearing and stayed the individual challenges. The issue before Lambert J was whether the Regulations complied with article 2(n) and article 28 of the Dublin III Regulation, particularly whether the criteria were mandatory, exhaustive, and sufficiently connected with the risk of absconding.

1. The claim was dismissed. The court held that the 2017 Regulations were lawful.
2. Article 2(n), read with article 28, requires an individual assessment based on all the applicant’s specific circumstances, but confined to objective criteria defined by law. The criteria provide legally certain and predictable limits on the matters that may support a finding that reasons exist to believe that the applicant may abscond. They do not themselves determine that a risk exists, that it is significant, or that detention is necessary and proportionate.
3. The criteria in regulation 4 were mandatory and exhaustive. The requirement that the Secretary of State “must consider” the listed criteria left no discretion to omit them or add other criteria. There was no material distinction between considering and applying criteria.
4. The necessary connection between the criteria and absconding was not a direct or exclusive connection. A broad range of immigration conduct may rationally bear on the existence of a risk, including previous absconding, withdrawal of an asylum claim, non-compliance, unwillingness to return, United Kingdom ties, proximity of transfer, deception, lack of satisfactory identity evidence, and unsatisfactory answers. The fact that criteria might apply to many Dublin applicants did not make them unlawful.
5. Reasonable explanations or excuses could be considered in the individual assessment, and when deciding whether any risk was significant and whether detention was necessary and proportionate. Their omission from the wording of individual criteria did not invalidate the Regulations.
6. With some hesitation, the court adopted a two-stage review: whether the criteria fulfilled the purpose of the Dublin III Regulation and, if so, whether they were necessary for identifying a risk of absconding. Applying that approach, the criteria were rationally connected with, and necessary for, the required risk assessment.

This was a first-instance judicial review. By an order dated 27 September 2017, Lavender J directed that the challenge to the 2017 Regulations be determined at a rolled-up hearing and stayed the remaining grounds.