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

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 7^th 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.