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Not everyone has the right for their asylum claim to be heard in the UK. If you are an adult and you claim asylum in the UK, and the Home Office proves that you have travelled through a safe country on your journey to the UK, they may “transfer” your case and say that you have to return to that safe country (the “third country”) to have your asylum claim heard.
They are called “third” countries because they are not the UK and not your country of origin/residence.
In practice, this is usually only enforced for people who have travelled through countries that are European Economic Area (EEA) member states plus Switzerland, as removal back to those member states is allowed under a European agreement called the Dublin Regulations. There have been several versions of the Dublin Regulations, and the ones currently in use are called Dublin III (three).
If the Home Office can prove that you have travelled through another EEA country, they are likely to refuse to consider your asylum claim in the UK. They will probably attempt to transfer your case to the country that they can prove you travelled through and where you could have claimed asylum. If the transfer request is accepted by that country, the UK will remove you to that country without looking at your asylum claim at all.
Detention in Dublin cases
The Dublin III regulations state that people should not be detained solely because they are being put through the Dublin regulations transfer process, and they should only be detained if there is a “significant risk of absconding”. The UK Home Office determines that most people are at risk of absconding, so detains many people whose case falls under the Dublin regulations. It’s important to note that if they do this to you, they then have to process your transfer more quickly (see information on transfer deadlines in the Toolkit here).
Detention should for the shortest possible time and for no longer than is reasonably necessary to carry out the administrative procedures. That means that someone who is detained for longer than the time-limits for detention cases listed below may be able to challenge their continued detention.
According to a European Court of Justice ruling, there is a six week limit on detention when the person is detained at the time when the transfer request is accepted by the other country. In other circumstances, you should not be detained for a period “vastly in excess” of six weeks (three months, for example).
A 2017 case in the European Court of Justice ruled that EU member states member states must establish objective criteria for determining if a person subject to a Dublin transfer might abscond (the justification for detention mentioned above).
The UK Home Office immediately issued regulations which contained these criteria. You can read the criteria here.
A 2018 case in the Court of Appeal, Hemmati & Ors, looked at whether this meant that the Home Office had, prior to March 2017 and the publication of these criteria, been detaining people for the purposes of the Dublin procedure unlawfully.
The majority ruling of the court (one of the three judges dissented) was that the asylum-seekers appealing had been held unlawfully and were entitled to damages.
What does this mean?
Greg Ó Ceallaigh of Garden Court Chambers, one of the barristers involved in the case, is quoted in the Free Movement blog case analysis:
This is a case of massive significance to anyone who was detained for the purposes of removal under the Dublin III Regulation between 1 January 2014 and 15 March 2017. Throughout that period, when the Secretary of State failed to define in law the criteria for a risk of absconding – the only way detention can be justified under the Regulation – there was a public law error bearing on the decision to detain. Those people were falsely imprisoned.
This means that people who were detained for the purposes of a Dublin procedure between 1 January 2014 (the date the Dublin III regulations came into force) and 15 March 2017 should seek legal advice to determine if they also were detained unlawfully, and if they are entitled to damages.
Nath Gbikpi, the lawyer who wrote the Free Movement case analysis, suggests that people may want to wait to see the amount of damages awarded to the two people in the Hemmati case, and also to keep an eye on whether the Home Office appeal the case to the Supreme Court. We will update on this as soon as possible.