This article was written by Mishka from the Freed Voices group – Freed Voices is a group of experts-by-experience dedicated to speaking about the realities of detention and calling for radical detention reform. Mishka writes under a pseudonym.
On 4 October, the Court of Appeal handed down a landmark judgment: Hemmati & Ors. The case had been brought by five appellants, all asylum seekers, who argued that their detention before 15 March 2015 under Dublin III provisions, on the basis of ‘significant risk of absconding’, was unlawful.
On 15 March 2015, the judgment in the case of the EU case Al Chodor was handed down. Here, the European Court of Justice ruled that a ‘risk of absconding’ could only be used as a justification for detention where there are clear criteria of how caseworkers might come to decide that such a risk exists. The Home Office only published such criteria on the same day Al Chodor was handed down. These five asylum seekers had been detained before that date.
Recently, on 4 October, the Court of Appeal ruled that anyone detained under Dublin III provisions, due to a ‘risk of absconding’ before the criteria were formulated and published, has been detained unlawfully. In a split judgment, the Court of Appeal judges found that
[t]here is no doubt that all the necessary ingredients for the common law cause of action for false imprisonment are satisfied in the case of each of the appellants.
Why is this judgment interesting?
My immigration detention campaigns and advocacy approach always has been about considering detention as a human rights and civil liberties issue, rather than only an asylum seekers’ issue. Everybody in detention, whether they are asylum seekers or from another category of immigration detainees, is subjected to the deprivation of liberty and a restricted access to justice.
Therefore, even though this judgement specifically relates to a particular cohort of asylum seekers detained under Dublin III provisions, I hope that this judgement will have a wider impact on the UK’s practice of detention as a whole. The case exposes the routine and frequently unlawful detention of migrants, and will serve as a reminder to the Home Office that the courts will act as a check on the unrestricted use of detention.
‘Significant risk of absconding’: open to abuse
As mentioned above, the Home Office had maintained the ongoing detention of these five appellants on the basis that there was a ‘significant risk of absconding’. I often hear that the Home Office is keeping people detained indefinitely – even when there is no realistic prospect of removal – arguing that there is a ‘significant risk of absconding’.
I also hear that even the independent immigration judges of the First Tier Tribunal dealing with immigration bail applications also often refuse bail applications for the same reason: ‘risk of absconding’.
Whatever the definitions now in place to define such a risk, my view is that predicting that someone will abscond once released from detention is still a vague area. We do not have magic crystal balls that the Home Office and immigration bail judges can use to predict that someone will abscond once released from detention.
Keeping someone locked up in immigration detention indefinitely, claiming that the person in question would abscond is inevitably a subjective exercise, and is open to abuse.
Will the Home Office learn from this judgement?
So I’m left pondering: what might be the long-term implications of Hemmati & Ors? I suppose that affected people would be able to claim damages for false imprisonment under UK law, and more would be added to the amount of £21 million in compensation for unlawful detention cases the government had already paid.
But more importantly, I hope that the Home Office will learn a lesson this time, rather than simply saying, as they have done, that they are “disappointed with the court’s ruling and carefully considering the next steps”.
Impact on indefinite detention
Freed Voices group members have cumulatively lost 20 years of our lives to the UK’s indefinite immigration detention system. We have members who were detained for over two years only to be then released back into the community. They are still haunted by their experience of detention, and the experience has irreversibly damaged the trust they place in UK immigration authorities. I am not surprised at all when they say that they do not trust the Home Office anymore. Having no set time limit on detention is one key reason why people keep being wrongly detained for months and even years only to be released back into the community.
Why? Because without a time limit, there is simply no urgency attached to the decision of whether to deprive someone of their liberty. People with first-hand experience of UK’s indefinite detention are aware of how it impacts on individuals, their family members, and the wider community as well. As my fellow Freed Voices member Ed says:
I believe: a no time limit on detention is almost similar to a deprivation of our right to acknowledge God's presence in our life, and certainly an unbearable suppression of any human being's right to liberty and justice.
Therefore, this judgement gives me hope that this will add more pressure on the government to have second thoughts about their obsession of detaining people. Also, as a premium, I hope that the government might have second thoughts about indefinite detention and consider introducing a 28 day time limit on detention. The indefinite nature of UK’s immigration detention exacerbates all the harms posed by the system; it is the elephant in the room the government has been avoiding consistently.