Challenge to Legality of Dublin Significant Risk of Absconding Regulations 2017

The Administrative Court has designated a cohort of six Duncan Lewis cases (Omar & Others) to examine the legality of the Transfer for Determination of an Application for International Protection Regulations 2017 which came into force on the 15th March 2017. The Administrative Court has ordered a rolled-up hearing to take place on the 1st February 2018.

The key grounds of challenge are;

• That it was unlawful for the SSHD to transplant factors found in previous immigration detention practice and guidance
• That the 2017 Regulations fail to prescribe the criteria which must form the basis for any reasoned conclusion in an individual case that there is a significant risk of the individual absconding if not detained.
• That the provisions are unlawful and contrary to the content and purpose of the Dublin III Regulation
• That the 2017 Regulations contain provisions far too broad and imprecise
• That the 2017 Regulations are unlawful in not securing such rights of transparency, legal certainty and due process.

This news has the potential to be highly beneficial to those detained under the Dublin Detention Regulations of 2017 (after 15TH March 2017) since anyone detained in this way has been subject to unlawful detention because of capriciously chosen criteria. It also hinders access to legal advice and representation, which is considerably important for challenging the unlawfulness of detention itself, as well as challenging substantive decisions to remove to another Member State.

Those in detention could possibly seek an interim relief application for release from detention if they are found to have been unlawfully detained although it will be necessary to establish whether or not the detainee has real prospects for release and they will require full, detailed statements in order to make their case.

It is believed that the Home Office has taken a reckless approach as to establishing whether or not the Dublin Detention Regulations 2017 are lawful. Due to the large number of people affected by issues related to detention under the regulations, an investigation is being launched as to the prospects of those affected being able to obtain generic relief.

The Claimants are currently represented by Raja Uruthiravinayagan, who is leading the legal team, Maria Petrova and Husein Meghji. Instructed Counsel are Stephen Knight and David Chirico, both of 1 Pump Court Chambers, and Michael Fordham QC of Blackstone Chambers.

[For any further information: please email Rajau@duncanlewis.com or Toufiqueh@duncanlewis.com]

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