Omar & Ors v The Secretary of State for the Home Department

Under the Dublin III Regulation, objective criteria for believing that an applicant may abscond form a binding framework of predetermined limits. They need not operate as a rigid tick-box code under which satisfying one criterion automatically establishes significant risk. The assessment must remain individualised. The decision-maker must evaluate the existence and degree of risk, weigh the prescribed criteria and consider explanation or mitigation. A significant risk is only a condition precedent to detention. Detention remains discretionary, must be proportionate, and is unavailable where less coercive effective measures suffice. Paragraph 4 of the Transfer for Determination of an Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017 was therefore lawful and proportionate.

The appellants were adult third-country nationals who entered the United Kingdom unlawfully and later claimed asylum. Eurodac searches showed that they had previously been fingerprinted, and in some cases had claimed asylum, in other Member States. Requests were made for those states to take them back under the Dublin III Regulation. The appellants challenged their detention pending transfer and the lawfulness of the 2017 Regulations.

Lambert J rejected the judicial review claims and held that the Regulations were lawful: [2018] EWHC 689 (Admin). The appeal concerned whether paragraph 4 had to make fulfilment of an objective criterion conclusive of significant risk, and whether the criteria were proportionate.

Lord Justice Davis gave the leading judgment. The Senior President of Tribunals and Hickinbottom LJ agreed.

1. Appeal dismissed. The conclusion of Lambert J was confirmed, and the remaining aspects of the judicial review claims could proceed.
2. Meaning of the Dublin III Regulation. The decision in Chodor, Case C-528/15, concerned the source and legal quality of the objective criteria required by Article 2(n), not their substantive content. The word define was used broadly to mean setting out or establishing criteria. National criteria therefore provide a binding framework of predetermined limits, rather than an automatic or uniform code.
3. Operation of paragraph 4. Paragraph 4 of the Transfer for Determination of an Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017 is mandatory and closed in scope. The Secretary of State must consider criteria (a)–(k). The Regulations effectively combine assessment of the existence and significance of risk, while requiring an individual evaluation of the degree of risk, the weight of each criterion, and any explanation or mitigation.
4. Detention remains discretionary. A significant risk of absconding is a necessary condition precedent to detention, but it does not mandate detention. Article 28(2) preserves a discretionary decision which must itself be proportionate and must not be made where less coercive effective measures are available.
5. Proportionality. The court doubted that the most intensive suitability-and-necessity review advanced by the appellants was required, given the discretion left to Member States and the Dublin III Regulation’s objectives of both protection and efficient transfer procedures. In any event, even applying that demanding standard, the criteria were objective, rationally and closely connected to absconding risk, and not arbitrary. The proportionality challenge therefore failed.

1. Court of Appeal (Civil Division): Appeal dismissed on both grounds. The court confirmed that the 2017 Regulations were lawful and proportionate: [2019] EWCA Civ 207.
2. Administrative Court: Lambert J rejected the appellants’ challenge and held that the Regulations were lawful: [2018] EWHC 689 (Admin).