The Supreme Court decision – detaining asylum seekers was unlawful

By Rona Epstein

15 January 2020

On 27 November 2019, the Supreme Court gave judgment in R (Hemmati and others) v Secretary of State for the Home Department [2019] UKSC 56.

Five individuals arrived in the UK illegally and claimed asylum; two from Iraq, two from Afghanistan and one from Iran. Two had already claimed asylum in Bulgaria, two in Austria, and one in Bulgaria, Hungary and Austria. All were to be sent back to the countries where they first claimed asylum. They were all detained in the UK for periods between five and 16 weeks. They brought judicial review proceedings to challenge the lawfulness of their detention.

The Supreme Court ruled that the Home Office was not entitled to detain these five asylum seekers for removal under the Dublin III Regulation. These Regulations came into force when the Dublin III Regulation introduced new protections for asylum seekers being moved around within the EU in January 2014.  Articles 28 and 2 (n) enacted a prohibition on detention except where there was a ‘significant risk of absconding’ determined individually by reference to ‘objective criteria defined by law’. However, the British government did not enact such a law until 15 March 2017.  From January 2014 until 15 March 2017 the British government routinely sent asylum seekers into detention centres while their cases were investigated. The Supreme Court has now ruled this to have been unlawful imprisonment.

Such detention amounted to false imprisonment and these five asylum seekers were therefore entitled to damages.

Protection for refugees

Every year thousands of people fleeing war, natural disaster or ethnic violence in their homelands arrive at our border seeking sanctuary. Some will be granted permission to stay. However, many asylum seekers, including the most vulnerable survivors of torture and other serious abuses, experience the UK border system as hostile, baffling, hard to negotiate and may find themselves locked up in squalid conditions. They can, in effect, be imprisoned even though they have committed no crime and not appeared before any criminal court.

Under the 1951 Refugee Convention anyone has the right to apply for asylum in any country that has signed the 1951 Convention and to remain there until the authorities have assessed their claim. It is recognised in the 1951 Convention that people fleeing persecution may have to use irregular means in order to escape and claim asylum in another country – there is no legal way to travel to the UK for the specific purpose of seeking asylum.

This case will be of wide significance. All those detained for the purposes of Dublin III removal between the coming into force of the Dublin III Regulation in January 2014 and 15 March 2017 were unlawfully detained and falsely imprisoned and are entitled to damages. Since detention is routinely and unnecessarily used in Dublin III cases the numbers affected are likely to be high.

Article 31

Article 31 of the Refugee Convention provides that the Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularised or they obtain admission into another country. States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.

Section 31 of the Immigration and Asylum Act 1999 provides a defence based on Article 31 of the Refugee Convention to a limited range of offences, including the possession of false passports. However, the Criminal Cases Review Commission (CCRC) has recently expressed concern that potentially hundreds of asylum seekers and refugees have been wrongly convicted after being advised to plead guilty to offences relating to their entry to the UK. In the last 12 months, the CCRC – the statutory body responsible for reviewing alleged miscarriages of justice – has referred four cases for appeal where people were prosecuted and imprisoned when, the CCRC believes, they had a defence available to them. The CCRC warned that there may be many more people caught up in ‘a significant and potentially widespread misunderstanding or abuse of the law’. Three of the convictions have been quashed and the fourth is outstanding.

The four cases have common features. They involved people who:

  • entered the UK as asylum seekers/refugees;
  • were prosecuted for offences such as not having a passport;
  • were advised to plead guilty;
  • were not advised of potential defences; and
  • were sentenced to terms of imprisonment

Around 25,000 people in the UK are held in immigration detention under immigration powers each year. The largest category of immigration detainees is people who have sought asylum at some stage during their immigration process. In 2018, asylum detainees accounted for 51 per cent (12,637) of people entering detention. They are detained without any time limit. Those detained under these powers are not detained as part of any criminal sentence but are held for administrative convenience. Detention is optional. The decision to detain can be taken by a relatively junior caseworker at the Home Office and is not subject to automatic judicial oversight. At the moment approximately 1,800 individuals are being held in immigration detention facilities and prisons under immigration powers across the UK.

A public inquiry

The conditions under which failed asylum seekers are detained have been reported as horrific. On 6 November the Home Secretary announced that there will be a full public inquiry into the abuse uncovered by the BBC’s 2017 Panorama team who broadcast shocking footage of abuse at Brook House immigration detention centre run by G4S, a private company, with inmates being assaulted, humiliated and verbally abused by the officers of the centre.

In June 2019 the High Court ruled that a public inquiry should be held with G4S staff compelled to give evidence. In November 2019 the Court of Appeal rejected an application by the Home Office to conduct an inquiry into claims of systemic abuse at an immigration detention centre in private, rejecting the claims that public hearings would be prohibitively expensive. The Court of Appeal rejected the argument that 21 G4S staff involved in the abuse allegations should not be compelled to give evidence.

Report from Bail for Immigration Detainees

Testimony of those who have been subjected to immigration detention was recently published by the charity BID (Bail for Immigration Detainees). Their report Nothing good comes from detention is harrowing. The report reveals shocking personal experiences, for example, racist and disrespectful attitudes of staff, draconian lock-in regimes, poor hygiene and excessive use of solitary confinement. Harmondsworth IRC is run by a private company, Mitie. In March 2016 HM Inspectorate of Prisons said that the facilities there were dirty, rundown and insanitary. Between January 2016 and August 2017 there were 647 reported cases of detainees needing medical assistance because of self-harm inside Immigration Removal Centres – more than one per day.

The BID testimony demonstrates that there is no way to humanely deprive people of their liberty for immigration purposes.  In no other context could the right to liberty be taken away from a group of people with so few safeguards. Detention is isolating, de-humanising and causes irreparable harm to people and their families. Detention of asylum seekers who have committed no crime violates basic principles of justice.


Rona Epstein is an Honorary Research Fellow in Coventry Law School  

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