UK - Detention Action (applicant) v Secretary of State for the Home Department (defendant) and Equality Human Rights Commission (intervener) [2014] EWHC 2245

Country of Decision:
Country of Applicant:
Date of Decision:
09-07-2014
Citation:
[2014] EWHC 2245
Court Name:
High Court of Justice Queen’s Bench Division (Administrative Court) before Mr Justice Ouseley
National / Other Legislative Provisions:
UK - Immigration Act 1971
UK - Equality Act 2006
UK - Asylum and Immigration (Fast Track Procedure) Rules SI 2005 No.560
UK - Nationality
Immigration and Asylum Act 2002
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Headnote: 

Ouseley J in the High Court held although the practice and policy of the Secretary of State in operating the Detained Fast Track System (DFT) was not unlawful in its terms, there was room for improvement. The screening process must not only focus on the suitability of a claim for fast-tracking, but it must also consider the impact that a tight timetable and detention may have on the fair presentation of a claim. In addition, lawyers must be allocated to applicants earlier to allow for meaningful instructions to be given and to allow for vulnerable status to be highlighted. Falling short of unlawfulness, the system carried too high a risk that unfair determinations would be made against applicants. 

Facts: 

This case entailed a challenge by UK charity Detention Action to the Secretary of State’s policy, practice and procedure under the DFT. Under this system, anyone who has applied for asylum in the UK can have their application fast-tracked. This can be done because the asylum seeker’s case is not considered to be complex and can be dealt with summarily, in order to free up more time and resources to dedicate to the more complex cases. A decision to fast-track is made on the basis of an initial screening interview. During the time it takes to process the application and issue a decision (on average three weeks), the asylum seeker is detained.

Over time, it began to appear that some complex applications for asylum were being submitted for treatment under the DFT. This meant that they did not receive the level of attention they deserved, resulting in many worthwhile cases being rejected (especially those involving torture, rape and trafficking). There was often not enough time to consult with a lawyer before the decision was reached, and the timescale to prepare an effective defence was considerably tight.

Therefore, Detention Action brought an action arguing that the way the DFT was operated was unlawful, as it breached both the common law and Article 5 (1) (f) ECHR.

In particular Detention Action argued that the policy and practice of the Secretary of State in implementing the DFT had changed, and could no longer be classed as reasonable and not arbitrary. The features of the DFT that were approved of in Saadi v United Kingdom were no longer present. Detention Action argued that the DFT as had been operating since Saadi created an unacceptable risk of unfairness for applicants, and the policy was arbitrary, unreasonable and disproportionate. The Secretary of State contended that no substantive changes had been made since Saadi, and that its policy was still lawful.

Detention Action outlined nine specific areas of arbitrariness that had appeared in the practice of the Secretary of State since the Saadi case:

  1. There were considerably less applications for asylum and thus the need to fast-track no longer existed
  2. The average period of detention had become at least four times longer than at the time of Saadi
  3. The nationality list had been removed and there was no longer any clear criteria to determine whether an application should be fast-tracked
  4. The range of cases fit for fast-tracking had been broadened to include complex cases
  5. The necessary information was not being made available prior to a decision to fast-track being made
  6. The scope to persuade the Secretary of State to remove a case from the DFT was very limited
  7. A lawyer would only be appointed to the applicant a few days before the interview, and the decision would be issued a mere day after the interview, severely limiting the applicant’s right of access to legal advice
  8. The appeal process offers no safeguards

The centres that detainees were being held in had changed since Saadi and now exceeded the level of security required.

Decision & Reasoning: 

Justice Ouseley began by providing a detailed overview of the DFT system and the law governing it, citing various legislative sources, policies and case law.  He pointed out the fact that the DFT system had in principle been approved in the Saadi v United Kingdom case. There, the House of Lords held that the DFT was justified given the need to interview many applicants in a tight schedule, however such a system must be run in a manner that is reasonable and not arbitrary. In that case, the DFT was held to be run in a way that was “far from being arbitrary”, as the Secretary of State had “done all that he could be expected to do to palliate the deprivation of liberty of the many applicants for asylum here”. The Saadi case also went before the ECtHR, which upheld these principles.

With regards to Detention Action’s argumentation Ouseley J advanced that the change in circumstances since Saadi had not been significant enough to induce the Court into declaring the DFT unlawful. The benchmarks of reasonableness as set by Saadi had not been so concrete as to not allow for some elasticity, and therefore as long as the number of applicants, the waiting time for a decision, detention time, detention conditions and the criteria for choosing people did not differ markedly from Saadi, they were acceptable.

However, Ouseley J found fault with the screening process employed by the Secretary of State, which gives an initial decision as to whether the application should go down the DFT or down the normal track. Ouseley J drew from the evidence of the House of Commons Home Affairs Select Committee 7th Report on Asylum of 2013 in which it was revealed that one-third of cases are wrongly assigned to the DFT track, as often important factors such as rape and trafficking are not brought to light during screening. That Report recommended a more detailed screening stage with the opportunity to present corroborating and expert evidence to back any assertion of mistreatment.

Given the fact that 33% is not an overwhelming amount of failures, Ouseley J decided against declaring it unlawful. However, without re-drafting the questionnaire, Ouseley J did offer some suggestions for improvement. Such proposals included asking the applicant whether there were any reasons why their application would be unsuitable for fast-tracking, which could elicit the more sensitive elements of a claim. Ouseley J also recommended that the questionnaire be more specific, falling short of a detailed preliminary investigation yet still striking a balance with the fact that there is no access to a lawyer at the screening stage.

Turning to the issue of non-immediate exclusion of vulnerable persons from the DFT Ouseley J firstly highlighted that the applicant may not be willing to disclose such details at the screening stage, due to mistrust and potential adverse consequences, for example arising from naming traffickers; and secondly whether the allegation is in fact true.  

Ouseley J held that, in relation to all vulnerable persons, the Secretary of State is entitled to follow a policy that does not allow for automatic exclusion if an allegation of being a vulnerable category is unsubstantiated. As the Secretary of State had a practice that removed applicants from the DFT if the claim was substantiated by independent evidence, this was a sufficient safeguard. An automatic exclusion policy was unsuitable due to the difficulties in relying on a mere allegation at the screening stage, as the merits of an application are not given an in-depth consideration. Regarding those that suffer from a medical condition or have been victims of torture, Rule 35(3) of the Detention Centre Rules requires a doctor, upon medical examination of an applicant, to communicate any findings of these vulnerable categories existing within 24 hours of detention. Such reports do constitute independent evidence, thus providing an adequate safeguard. Despite having its shortcomings, such as tardiness and poor quality of these reports, this was not enough to render the policy unlawful.

For applicants who have been trafficked, as independent evidence is highly difficult to obtain, they need only show there are “reasonable grounds” to prove that they were victims of trafficking. The applicant therefore need not prove the allegation, but merely raise a suspicion, and their case will not be referred to the DFT. Ouseley J held this to be a satisfactory safeguard. In terms of pregnant women, Ouseley J found that automatic exclusion was not appropriate, as suitability for DFT could still be assessed on a case by case basis.  

Finally regarding timetables, flexibility and legal representation, Ouseley J once again held that it fell short of unlawfulness, however there was room for improvement. According to evidence presented, there was an average wait of 11 days for a substantive interview, and 13 days to a final decision. Further delays can occur due to inability to attend interview, late change in legal representation and difficulties in obtaining a translator, which tightens the timetable even more. Importantly, an applicant will usually only have first contact with a lawyer 30 minutes before the substantive interview. Post-interview instructions were also difficult to arrange. Given the difficulties in booking rooms, it was difficult to arrange face-to-face instructions. Furthermore, there was usually only one day between lodging an appeal and the appeal hearing, further curtailing the applicant’s chance to provide meaningful instructions to a lawyer. Due to these complications, it was not uncommon for applicants to go unrepresented at hearings. Ouseley J held that, although there are some individual cases where these complications are present, this is not sufficient to declare the practice as a whole unlawful. However, as access to a lawyer is a “crucial ingredient” to a fair hearing, these shortcomings cannot go ignored. The prolonged period of inactivity between induction and allocation of lawyers was “indefensible”.  Allocation should be done the day after induction, to allow much more time to communicate instructions, taking into account potential delays. Falling short of unlawfulness, this late allocation of lawyers created an “unacceptably high risk of unfairness”, which could be simply remedied by earlier allocation. Such a change would also allow for earlier identification of vulnerable categories, as such applicants would be more willing to share information with a lawyer once a relationship of trust has been established. It would also compensate for the shortcomings in the Rule 35 process and the tight timetable upon which the DFT operates.

Outcome: 

Application denied. The practice and policy was not unlawful, however some changes had to be made by the Secretary of State to minimise the risks of unfairness.

Subsequent Proceedings : 

The Home Office did make a series of changes to its policy, including allocating a lawyer four days before the substantive interview.

Detention Action appealed this case to the Court of Appeal, arguing that the High Court should have also addressed the issue of DFT detention pending appeal. The Court held that detention pending appeal did not breach the policy of the Secretary of State, however it was neither clear nor transparent, and there was no possible justification for it (although this was not necessary to rule on). The practice was therefore unlawful and the appeal was granted.

On 2 July 2015, Minister for Immigration James Brokenshire declared the temporary suspension of the DFT system. 

Observations/Comments: 

This case has been described as a ‘landmark’ victory for opponents of the DFT, as although it did not secure its unlawfulness, it did put considerable pressure on the Secretary of State. As the subsequent proceedings show, this case triggered the eventual demise of the system by bringing to light its fundamental failings.

As the suspension of the system is temporary, it remains to be seen when it will be revived and what changes it will incorporate. 

Other sources cited: 

UK Border Agency Policy.

 

This case summary was written by Joanna Gilbert, law graduate of University College Cork, Ireland and a graduate of LLM European Law from Leiden University.

Case Law Cited: 

UK - EO and Others v SSHD [2013] EWHC 1236

UK - In re Findlay [1985] AC 318

ECtHR - Medvedyev and Others v France, [GC], Application No. 3394/03

UK - R. (on the application of Saadi and others) v. Secretary of State for the Home Department [2001] EWHC Admin 670, [2001] EWCA Civ 1512, [2002] UKHL 41

UK - R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245

UK - R (Refugee Legal Centre) v Secretary of State for the Home Department [2004] EWCA Civ 1481, [2005] 1 WLR 2219

ECtHR - Gillan and Quinton v. The United Kingdom, Application no. 4158/05

UK - R (L and another) v SSHD [2003] EWCA Civ 25

UK - R(D and K) v SSHD [2006] EWHC 980

UK - R (JB)(Jamaica) v SSHD [2013] EWCA Civ 666

UK - R v Home Secretary, ex parte Fayed [1998] 1 WLR 763

UK - R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58

UK - R (Medical Justice) v SSHD [2011] EWCA Civ 1710

UK - R(Tabbakh) v Staffordshire and West Midlands Probation Trust and Secretary of state for Justice [2014] EWCA Civ 827

UK - MT v SSHD [2008] EWHC 1788