Detention Action v Secretary of State for the Home Department  EWHC 2245 (Admin); (2014) PLLR 090
Queen’s Bench Division, Administrative Court, Ouseley J
9 July 2014
(1) The charity Detention Action brought a general claim to challenge the lawfulness of the policy and practice applied by the defendant in the operation of the Detained Fast Track, DFT. There are no individual claimants in this action.
(2) This is the policy for the detention of some asylum seekers while their asylum claims are determined first by the SSHD, and then while they appeal if the claim is refused. They are detained on the basis that their claim and any appeal can be determined quickly.
(3) The most recent DFT policy, ‘Detained Fast Track Processes’ was published on 11 June 2013. It is an instruction to referring and screening officers, setting out that an applicant may enter into DFT if there is power in immigration law to detain, if it appears that a quick decision is possible, and none of the exclusion criteria apply. Consideration of suitability for the programme must be ongoing. The usual timeframe for decision would be less than 10-14 days.
(4) Detention Action contends that the DFT system as now operated is so unfair as to be unlawful, and it is unlawful at both common law and as a breach of Article 5 (1)(f) ECHR.
(5) The Equality and Human Rights Commission, EHRC, intervened to support the submissions of Detention Action, and added submissions on Articles 3 and 5, and Articles 13 and 14, principally the latter. A possible failure to comply with the public sector equality duty in s149 of the Equality Act 2010 was fleetingly raised, but was not found to add anything of substance to the Article 14 arguments.
(6) The SSHD submitted that although there might be individual occasions when the DFT was operated unlawfully, contrary to its terms, the court should be very cautious before making any general findings that the system was unlawful, generalising from individual case histories and anecdotal evidence.
(7) Both parties drew heavily on the cases of R (Saadi) v SSHD  UKHL 41 and Saadi v UK (2008) 47 EHRR 17, in which the House of Lords and European Court of Human Rights considered the lawfulness of an earlier iteration of the DFT programme. There have been policy changes to the programme since those cases were decided.
(8) The first claimant’s Article 5 contention was that the DFT programme was unreasonable, arbitrary and disproportionate. The ECHR supported these submissions, contending that the policy no longer eliminated ‘all risk of arbitrariness.’ The claimants noted that the average period of detention in the DFT was at least four times longer than the 7-10 days advised, that decision-makers lacked good guidance on which cases were suitable, that more factual scenarios were now considered suitable for the programme, that the screening process did not operate with the proper information, that errors at the screening stage were unlikely to be remedied, that legal help was assigned too shortly prior to hearings to be of real assistance, that the appeals process provided few safeguards, and that detainees were held in conditions of security greater than those considered appropriate in Saadi.
(9) HELD: The court held that the policy is generally lawful, except for the timing of when lawyers are instructed to represent individuals in the DFT.
(10) As a preliminary matter, the court found that the DFT policy applied to the immigration appeals process as well as determinations by the defendant, and that the fundamental criteria for entry into the programme is the whether the case at hand is suitable for a quick decision.
(11) The court’s decision took each of the individual concerns about the programme in turn.
(12) Reduction in numbers claiming asylum: The overall numbers of individuals claiming asylum fell from 84,000 annually at the time of the Saadi decision to approximately 25,000 in the last few years. Of those in the DFT, 99% of asylum applications are refused, and 93% of refusals are upheld on appeal. The court found that the asylum caseload remains large, and it is in the interests of all to have cases resolved quickly. Disposing of unmeritorious claims quickly through detention is a legitimate aim, and the reduction in numbers of individuals applying does not make the system unlawful. The court also declined to find that the Assisted Voluntary Returns scheme was operating unlawfully by accepting decisions from people lacking capacity or who had received inadequate advice.
(13) Inclusion of the appeals process in the DFT: the court rejected the suggestion that the inclusion of the appeals process in the DFT is unlawful as a matter of principle. The statutory power to detain pending a decision on the grant or refusal of leave to enter clearly covers the power to detain while a statutory appeal right is exercised against a refusal. It is also clear that it is the defendant’s policy to exercise that power on DFT criteria, and not on general detention criteria. The court stated that there may be a claim on a lack of detailed justification for the inclusion of the appeals process, but it was not adequately made out here and the policy was not so obviously unlawful that no reasoning could save it.
(14) Duration of detention: The court found that the time in detention before the initial decision does not differ markedly from the time considered reasonable in Saadi, and the difference in expected time has largely come from the inclusion of the appeal process. The expected duration of the whole process to the exhaustion of appeal rights has been approximately 28 days since November 2012; in September 2013, the average period was 23.5 days. The court noted that while the period of detention was not disproportionate overall, where detention is justified for the purposes of enabling the process be carried out efficiently, it is incumbent upon the government to eliminate inefficiencies on its part and avoid delays. The court found it difficult to see why cases should take longer than the timescales achieved in September 2013, unless there are individual circumstances justifying a longer detention. The court did not find the present operation of the system unlawful on this ground.
(15) Criteria for entry to the DFT: The court found that the primary criteria for entry into the DFT was whether the case is suitable for a quick decision. The court did not find anything inherently arbitrary in setting an overarching criterion supplemented by the obvious major instances which support it, and that a checklist of criteria would not make decisions less arbitrary. The lack of a nationality list alerting officers which cases may take longer does not make the process arbitrary, and would create additional problems for those not on the list. The existence of an unpublished ‘operational considerations list,’ which address factors such as the availability of interpreters and redocumentation and is used in determining whether someone is suitable for a quick decision, does not render the process unlawful. The function of the document is help in the application of the policy, not to be the policy, though the court could not see a good reason why it was not publicly available. The fact that some categories of people are now eligible for the scheme who were not when Saadi was published also does not make the programme unlawful, as the categories are set out with sufficient clarity and transparency to satisfy Lumba.
(16) Screening process: The evidence that people were routinely released from detention at different times after the initial screening did not, in the court’s view, demonstrate that the screening process was unlawful. The process largely addressed issues relevant to making proper, reasonable and non-arbitrary decisions about entry to the programme. The court found that the defendant must consider what information is needed to make a decision quickly, and should routinely ask why any missing documentation is unavailable and give applicants an opportunity to argue why their claims are not suitable for fast-track determination. The defendant should review the screening questionnaire, bearing in mind the difficulties of obtaining legal advice in detention and the reluctance of some individuals to speak. However, the screening process is not unlawful due to the absence of counsel, though it is not as focussed on the issue of fairness as it ought to be.
(17) Vulnerable categories – Torture: The current policy excludes only those who have independent evidence of having been previously tortured, which the court found lawful. The screening process does not ask asylum-seekers if they have been tortured, which was found to be a lawful approach by both this and earlier courts. Such a question did not provide independent evidence of torture and would not automatically qualify the person for an exclusion from DFT.
(18) The report of an IRC medical practitioner under Rule 35(3) may provide independent evidence of torture (which need not be proof), if it consists of more than the mere statement of the applicant. Whether it will be independent evidence of torture depends on the content and quality of the report, and does not automatically mean the person is unfit for detention or unsuitable for the DFT. The evidence of release or failure to release on 35(3) reports does not show the DFT process is operating unlawfully or carries an unacceptably high risk of unfairness. On the evidence, however, the court found that Rule 35(3) reports are not the effective safeguard they ought to be, as they do not remove some from the DFT that one would expect to be removed. If a Rule 35 report contains new material that would have led to further questions at the screening interview, even if it is not independent evidence, the defendant should consider asking further question to determine if the person is truly suitable for DFT.
(19) Vulnerable categories - Trafficked applicants: The court found that the mere fact of a claim of having been trafficked does not make a person unsuitable for the DFT. The court noted that there were failings in the detection system, and it was likely insufficient to rely on the applicants’ coming forward with their status as trafficked people. The court noted that this issue put focus on when the applicant receives legal advice from someone with whom he or she can build trust.
(20) Vulnerable categories – Female Genital Mutilation: The court again accepted that the fact of a claim of having undergone FGM or being at risk of it is at issue does not make a case unsuitable for DFT.
(21) Vulnerable categories – Rape and domestic violence: The court did not find that a lawful screening process requires that these issues be inquired about specifically, and the mere fact of a claim does not make one unsuitable for DFT.
(22) Vulnerable categories –women in the first and second trimesters of pregnancy: the difficulties pregnancy can create should be considered when judging suitability for detention, but it is lawful to see these individuals as potentially suitable for detention and DFT.
(23) Vulnerable categories – people with mental health problems: The court posed this issue as being whether detention in the DFT creates a real risk that a person’s claim will not be decided fairly. Officials must explicitly consider whether any mental health problems may prevent the applicant from presenting his claim in the accelerated timetable. The court did not find the level of risk was so great as to make the policy unlawful, though the risk was higher than in other instances and is inherent in the process. The risk could be reduced by explicit consideration of the problem.
(24) Vulnerable categories – learning difficulties: The court repeated its observation from its finding on people with mental illness.
(25) Timetables, flexibility and legal representation: The average wait time for a substantive asylum interview is between 7 and 10 days. Interviews usually take place 1-2 days after allocation, and there were usually only 3-4 days between the appointment of a legal representative and the decision on the application.
(26) The court did not find that the lack of a Case Management Review hearing in the DFT process (which was present in the non-Fast Track process) made the DFT process ultra vires or unfair, or that the difference creates an unacceptable risk of unfairness. Additionally, the court did not find the policy was unlawful because of maintained appeals in the DFT.
(27) The court found that while individual case histories do not show that the policy is so unfair as to be unlawful, the consistent discrepancies between the defendant’s presentation of a sound system and its actual practice is real. The focus on the overall criteria rather than specific categories, while valid, has meant that there is a greater prospect of people wrongfully entering the DFT.
(28) The court found there was no justification for the ‘period of inactivity’ between induction into the DFT and the allocation of lawyers. This period in detention before lawyers are allocated and the proximity of allocation to the substantive interview means that in too high a proportion of cases, and in particular for those which might be sensitive, the conscientious lawyer does not have time to do properly what may need doing. The primary issue was in the timing of the lawyer’s appointment. The need for time for proper advice with time to act on it, beyond what the DFT allows, and the need for time for the effective safeguards properly to operate, is not fully appreciated at all stages and levels, partly through a desire to keep a case on track once it is in the DFT. The upshot is that the DFT as operated carries an unacceptably high risk of unfairness, but one which can be removed by the earlier instruction of lawyers. This finding may apply more greatly to vulnerable applicants. The risk requires remedial action to be taken beyond recourse to the FTT, though the court left this fix open to the defendant.
(29) Conditions in detention: the court did not find anything unlawful in detention for the purposes of DFT in the conditions described, or that the conditions of detention affected the fairness of the process.
(30) Position of women generally: The EHRC raised this issue, focusing particularly on women who were victims of gender-specific persecution or violence. It was argued that the DFT was incompatible with Article 14 in conjunction with Articles 3 and 5, due to the failure to take women’s particular needs and the differential impact on them into specific account in the formulation and operation of the policy. The court referenced its earlier findings on vulnerable applicants, accepting that difficulties may inhibit making or presenting claims on trafficking, torture, sexual violence or FGM. However, the court found that a claim cannot be assumed to be true merely because it is made, or that the particular case is necessarily complex. The inclusion of women in the DFT is lawful, as, with the exception of FGM, all of these grounds may also apply to men, and the problems in reporting have not been shown to differ between men and women. The court rejected all the human rights claims on this ground.
Claim partially succeeded.
 – Definition of detention  – Application of DFT criteria  – Application of DFT criteria  – Criteria for inclusion in DFT  – Numbers of individuals claiming asylum  – Assisted Voluntary Returns scheme  – Lawfulness of detention during appeals  – Detailed justification for a policy  – Reasonableness of time in detention  – Reasonableness of time in detention  – Lawfulness of time in detention  – DFT entry criteria  – Nationality list  – Operational considerations  – Non-publication of operational considerations  – Eligibility for DFT - – Lawfulness of the screening process  – Inquiries on additional evidence  – Absence of counsel in screening interviews  - Lawfulness of the screening process  – Evidence of torture - – Evidence of torture  – Evidence of torture - – Safeguards  – Lawfulness and risk of unfairness  – Exclusion from DFT on the grounds of trafficking  – Lawfulness and risk of unfairness
 – Lawfulness and risk of unfairness - – Duty to make inquiries in the screening process; lawfulness and risk of unfairness  – Lawfulness and risk of unfairness  – Lawfulness and risk of unfairness  – Lawfulness and risk of unfairness  – Case Management Review Hearings  – Interpretation of statute  – Unlawfulness on the ground of upheld appeals  – Period of inactivity in detention  – Appointment of a lawyer; unacceptable risk of unfairness  – Vulnerable applicants  – Conditions in detention -[214, 216] – Consideration for women applicants - – Conclusion