Ismail, R (On the Application Of) v Secretary of State for the Home Department

Detention of an asylum seeker falls within Article 28 of the Dublin III Regulation where it is used to secure a possible transfer under the Dublin procedure, even though domestic immigration powers also authorise detention and no transfer agreement has yet been reached.

Article 28(1) does not itself authorise detention merely because an applicant is within the Dublin procedure. Detention requires an individual assessment demonstrating a significant risk of absconding, proportionality, necessity and the ineffectiveness of less coercive measures. The detainee must also be told the legal and factual basis of detention so that an effective challenge can be made. Failure to comply with those requirements renders the detention unlawful.

The claimant, an Iraqi national, was detained under domestic immigration powers after entering the United Kingdom and claiming asylum. EURODAC searches indicated previous contact with several European states, and the Secretary of State made Dublin take-back requests, including to Ireland.

The claimant sought judicial review on the ground that his detention breached Article 28 of the Dublin III Regulation and the 2017 Regulations. Permission was granted on that ground alone. The central issues were whether the detention fell within Article 28 and, if so, whether the statutory and regulatory safeguards had been observed.

1. Scope of Article 28. The claim succeeded. Article 28 applied in principle because the detention was used to secure removal under the Dublin procedure. It was not necessary for a transfer agreement to have been reached. The Dublin procedure begins when an application for international protection is lodged, and may involve investigation, responsibility requests, legal challenges, substantive consideration and transfer.
2. The court rejected the Secretary of State’s submission that Article 28 was engaged only at the late stage when transfer arrangements had been agreed. Hassan demonstrated that detention may occur before a take-charge or take-back request is made. The safeguards in the Dublin Regulation could not be circumvented by relying on wider domestic detention powers.
3. The court departed from the approach in Khaled (No.2), R (W) and R (S) to the extent that those decisions treated Article 28 as confined to detention solely for an agreed Dublin removal or treated domestic detention powers as capable of avoiding Article 28. In light of Al Chodor, the domestic statutory discretion was limited by directly effective EU law. The Court of Appeal’s reasoning in Hemmati supported that conclusion.
4. Requirements for lawful detention. Detention under Article 28 required a significant risk of absconding, assessed individually, and was lawful only where proportionate, necessary and less coercive alternatives could not be applied effectively. The detention had also to be for as short a period as reasonably necessary and within the applicable time limits.
5. The claimant was not informed that he was detained under Article 28 or the 2017 Regulations, nor of the factual and legal basis for detention. The detention reviews did not establish a significant risk of absconding or address proportionality and necessity. Those failures breached Article 28 and the 2017 Regulations.
6. The detention was therefore unlawful. The assessment of damages was remitted to the appropriate court. Consequential applications, including costs, were to be dealt with in writing.

The judgment describes earlier permission decisions and stays in the Administrative Court. On 8 May 2019, permission to apply for judicial review was granted on Ground 1 only. The present court allowed the claim on that ground and remitted damages for assessment.