ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
The Hon. Mr Justice Ouseley
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE FLOYD
LORD JUSTICE FULFORD
| The Queen on the application of Detention Action
|- and -
|Secretary of State for the Home Department
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Cathryn McGahey (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 30 October 2014
Crown Copyright ©
Lord Justice Beatson :
(a) The DFT policy changed in 2008: see  –  below.
(b) Since 2008 the Secretary of State's policy in what is now the DFT Guidance has been that the "quick processing" DFT detention criteria apply to the appeal stage: see  –  below.
(c) The way the policy of detaining all those who satisfy the "quick processing" criteria pending their appeal is dealt with in the DFT Guidance does not meet the requirements of clarity and transparency: see  and  –  below.
(d) My conclusion on (c) means it is not necessary to decide whether the policy is justified as necessary for the purposes for which detention is authorised by the Immigration Act 1971 and not for a period that is longer than is reasonable in all the circumstances. But as there was full argument on this matter, I consider it at  –  below. In my judgment, on the fairly limited evidence that has been put before the court, after the Secretary of State's decision and pending appeal, detention in the fast-track by the application of the "quick processing" criteria cannot be said to be justified and is therefore not lawful: see  –  below. Accordingly, the state of the evidence means that I would have decided that detention in the fast-track is not lawful at that stage of the process unless the general detention criteria (summarised at  –  below) are met.
I add that, in the interests of clarity, in the remainder of this judgment, where it is necessary to avoid breaking up sentences with references to legislation, policy documents, and cases, I use footnotes. References to paragraphs in this and other judgments are indicated by square brackets, and references to paragraphs in other documents by "§".
II. The legislative background and the approach of the courts
"It is regrettable that anyone should be deprived of his liberty other than pursuant to the order of a court but there are situations where such a course is justified. In a situation like the present with huge numbers and difficult decisions involved, with the risk of long delays to applicants seeking to come, a balancing exercise has to be performed. Getting a speedy decision is in the interests not only of the applicants but of those increasingly in the queue. …"
III. Ministerial statements about the DFT process
"The new fast-track procedure rules…will enable us to pilot fast-track decisions and appeals based on co-location of key elements of the asylum process. …detention will initially be for about 2 – 5 days to enable claimants to be interviewed and an initial decision made. …detention of asylum seekers for a short period for the purposes of making a speedy decision on their claim was upheld last October as lawful by the House of Lords. If the claim is refused or for any reason cannot be dealt with accordance with the pilot timescales, a decision about further detention will be made in accordance with existing detention criteria. Detention in this category of cases will therefore normally be where it has become apparent that the person would be likely to fail to keep in contact with the Immigration Service or to effect removal." (emphasis added)
"However, we will continue to detain for the purpose of deciding the claim quickly, even beyond the 10 – 14 day timescale, unless the length of time before a decision will be made looks like it will be longer than is reasonable in all the circumstances. Continued detention may also be merited in some cases irrespective of decision timescale, where our general detention criteria apply. We may also detain claimants after we have made and served a decision in accordance with our general detention criteria." (emphasis added)
IV. Policy Guidance: the OEM, the EIG and the DFT Guidance
"An applicant may enter into or remain in DFT/DNSA processes only if there is power in immigration law to detain, and only if on consideration of the known facts relating to the applicant and their case obtained at asylum screening (and, where relevant, subsequently), it appears that a quick decision is possible and none of the detained fast-track suitability exclusion criteria apply.
DFT/DNSA suitability has no requirements as to nationality or country of origin and no other bases of detention policy need apply (see chapter 55 of Enforcement Instructions and Guidance (EIG)). There is no requirement that an application be late and opportunistic."
§2.1.2 states that states that assessment of suitability of a case for the DFT process must take place at the time of referral and "at all stages of ongoing case management within DFT".
"[a]pplicants whose appeal rights are exhausted or lapse in the DFT process and do not qualify [for any form of leave] will be liable for removal. Any decision to maintain detention pending removal must be in accordance with law and policy, and must be subject to regular review (See Chapter 55 of [EIG]".
"Once a decision has been made however, detention policy requires that removal be imminent. The decision may be regarded as including the time during which an individual has extant appeal rights … "
"The indicative timescales in the policy only relate to the time of entry into the process until the time of [sic] the decision is served on the applicant. We wanted to clarify this more in the policy, because it is not entirely clear that the DFT process includes a fast-track appeals process. This means that the overall timescales of the whole process is longer when you take the appeals into account, but is still much shorter than the normal timescales in the non-detained process." (emphasis added)
The letter also stated that the government had sought to clarify in the policy that when an applicant exhausted all his or her appeal rights, he or she is then subject to removal and that "detention after that point is outside the DFT/DNSA process…".
V. The judgment below
"the clear implication that until appeal rights are exhausted or a section 94 refusal decision is served, it is the DFT detention policy that applies to someone whose application was refused by the Secretary of State, whose appeal rights have not yet been exhausted."
He considered that this was consistent with the statement in the policy documents from 2008 that is set out at  above and concluded that this "now clearly implies that the SSHD's policy is that the decision on appeal is part of the decision-making process to which the principle governing detention set out in Saadi's case applied". He also stated:
"The DFT detention policy applies now, and has done so expressly for some years, to the appeal stage of the decision-making process." (at , emphasis added)
He stated that as he read the policy, it changed, but also stated that "it may just have been badly expressed in the past" but "it is clear now".
"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 refusal. It is also clear now, at any rate, and in my view has been clear since 2008, that it is the SSHD's policy to exercise that power on DFT criteria, and not on general detention criteria: the fact that a case is in the DFT is sufficient as a matter of policy for it to remain in the DFT unless either the SSHD or judiciary remove it as not or as no longer suitable for the fast-track appeal process. There is nothing unlawful about such a policy. On the face of it, I see no reason why, if the criteria are otherwise lawful, that should be an unlawful policy."
"…The number of appeals, and the need for the appellant to be in detention so that the appeal process runs smoothly is not explained, though the data suggests that there are well over 2,000 appeals a year in the DFT. [After referring to the eight fast-track courts, each of which aims to hear two appeals a day, he continued] Ms McGahey spoke of the difficulties of hearing the appeal of someone released from the DFT on the fast-track timetable: they would need accommodation near one of the three hearing centres for ease of access; the lawyers would have to be nearby as well for meetings; they would have to arrange meetings although just released to new accommodation in what might be a strange place; there would be plenty of opportunities for travel arrangements and meetings to go awry. The proper operation of the fast-track appeals process would be undermined."
He accepted that Ms McGahey may well have been speaking of the logistics and resource problems which the Secretary of State "would expound to justify continuing detention other than on general detention criteria during the appeals process", but stated that there was no evidence from Mr Simm expressing those or other reasons. He then gave the reasons for refusing to rule on this matter, which I have summarised at  above. I have referred to the evidence filed after his main judgment at  and  above, and deal with it in the next section of this judgment.
(a) Was the judge correct in deciding that DFT policy changed in 2008 and before then the "quick processing" DFT detention criteria did not apply to the appeal stage?
(b) Was the judge correct in deciding that, since 2008, the Secretary of State's policy contained in the DFT Guidance is that the "quick processing" DFT detention criteria apply to the appeal stage?
(c) After 2008, whether or not the practice of detaining all those who satisfy the "quick processing" criteria pending their appeal was a breach of the Secretary of State's policy, does it meet the Lumba requirements of clarity and transparency?
(d) Is there a lawful justification for the policy or practice of detaining all those who satisfy the "quick processing" criteria pending their appeal?
There is an overlap between the points that are relevant to answering questions (b) and (c), and therefore an overlap in the analysis. The judge did not rule on questions (c) and (d). His view that it is clear that after 2008 the policy is to detain in the DFT pending appeal and that, there is nothing objectionable in principle in applying the "quick processing" criteria to the appeal stage, however, suggests that he considered that the Lumba requirements were met.
"15 In my view the application of the quick decision detention basis to the DFT appeals process is logical. It ensures that a quick and fair decision to refuse asylum is made, the case will, subject to ongoing suitability, continue to be quickly and fairly considered in the accelerated appeals process. The key determining factor throughout is quickness (and with it, fairness). Alternative approaches do not provide the same common-sense continuity.
16 If the appellant's absconding risk was the sole reason for post-decision detention, there would inevitably be some who could not be detained if they chose to exercise their appeal right. This would reduce the overall number of decisions being determined through the DFT appeals process, which would undermine the end-to-end intention of the overall DFT process."
Lord Justice Floyd:
Lord Justice Fulford:
Note 1 The notable instances in the last decade are Lord Bingham’s statements in R (von Brandenburg) v E. London & City NHS Trust  UKHL 58,  2 AC 280 at ; A v Secretary of State for the Home Department [ UKHL 56  2 AC 68 at ; and those by Lord Dyson and Lord Collins in R (Lumba) v Secretary of State for the Home Department  UKSC 12,  1 AC 245 at  and . [Back] Note 5 Campsfield House, Colnbrook House, Harmondsworth and Yarls Wood were the IRCs originally listed in the 2005 Tribunal Fast Track Rules. Oakington Reception Centre, the original location of expedited decision-making, was later added to the list until it was closed in 2008. [Back] Note 6 The DFT process also applies to a category of cases known as “DNSA” cases. “DNSA” is the acronym for “Detained Non Suspensive Appeals”, i.e. those applicants whose application for asylum is refused and certified under section 94 of the 2002 Act and who do not have an in-country right of appeal. DNSA cases do not arise in this appeal because it is only concerned with the position pending an in-country appeal. [Back] Note 21 The judge referred to the concern of the EU Commission ( EWHC 2245 (Admin) at ), but did not refer to this letter. [Back]
Note 1 The notable instances in the last decade are Lord Bingham’s statements in R (von Brandenburg) v E. London & City NHS Trust  UKHL 58,  2 AC 280 at ; A v Secretary of State for the Home Department [ UKHL 56  2 AC 68 at ; and those by Lord Dyson and Lord Collins in R (Lumba) v Secretary of State for the Home Department  UKSC 12,  1 AC 245 at  and . [Back]
Note 5 Campsfield House, Colnbrook House, Harmondsworth and Yarls Wood were the IRCs originally listed in the 2005 Tribunal Fast Track Rules. Oakington Reception Centre, the original location of expedited decision-making, was later added to the list until it was closed in 2008. [Back]
Note 6 The DFT process also applies to a category of cases known as “DNSA” cases. “DNSA” is the acronym for “Detained Non Suspensive Appeals”, i.e. those applicants whose application for asylum is refused and certified under section 94 of the 2002 Act and who do not have an in-country right of appeal. DNSA cases do not arise in this appeal because it is only concerned with the position pending an in-country appeal. [Back]
Note 21 The judge referred to the concern of the EU Commission ( EWHC 2245 (Admin) at ), but did not refer to this letter. [Back]