The Transfer for Determination of an Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017 were intended to give effect to the requirement stated by the Court of Justice of the European Union that the objective criteria in article 2(n) of Parliament and Council Regulation (EU) No 604/2013 (the “Dublin III Regulation”), to be considered when determining whether a person posed a significant risk of absconding for the purposes of article 28(2) of the Dublin III Regulation, were to be implemented in domestic legislation. In six claims for judicial review the claimants challenged, inter alia, the lawfulness of the 2017 Regulations on the basis that the criteria set out in regulation 4 were no more than a non-exhaustive list of optional relevant considerations and that a sufficient rational link between those criteria and the risk of absconding was absent.
On the claims—
Held, claims dismissed. For the purpose of determining the lawfulness of the 2017 Regulations, the test was, first, whether the objective criteria fulfilled the purpose of the Dublin III Regulation and secondly, if so, whether the criteria were necessary for the purpose of identifying a risk of absconding. The objective criteria set out in in the regulation 4 were both mandatory and exhaustive in their application. Taken individually and collectively the 2017 Regulations defined objective criteria for determining whether reasons existed in an individual case to believe that an individual may abscond, and the criteria were necessary for that purpose. Therefore, the 2017 Regulations were not unlawful (paras 51, 54, 61).
Michael Fordham QC, David Chirico and Stephen Knight (instructed by Duncan Lewis Solicitors Ltd) for the claimants.
Alan Payne (instructed by Treasury Solicitor) for the Secretary of State.