ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
HH JUDGE ANTHONY THORNTON QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SINGH
SIR JACK BEATSON
| THE QUEEN (on the application of ABDUL HAMEED and RASHIDA JABEEN)
||Claimants / Respondents
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
||Defendant / Appellant
Mr Gordon Lee (instructed by Duncan Lewis) for the Respondents
Hearing date: 6th March 2019
Crown Copyright ©
Lord Justice Davis:
The DFT proceedings
The DFT process and the DA litigation
(1) First, the administrative power to detain asylum seekers (and others), pending a decision to give or refuse leave to enter, is conferred by statute: see, for present purposes, paragraph 16 of Schedule 2 to the Immigration Act 1971. Such a power is not of itself in any way required to be linked to use of a DFT process.
(2) Second, there is no objection in principle to use of a fast track process in such a context, albeit appropriate safeguards needed to be in place and to be observed: see R (Saadi) v Secretary of State for the Home Department  UKHL 41,  1 WLR 3131 and Saadi v United Kingdom (2008) 47 EHRR 17.
(3) Third, the 2005 Rules themselves – to the details of which I do not think, for present purposes, I need refer – essentially relate to the appeal process within the DFT process then applicable. It is right to say, however, that the 2005 Rules are predicated on the appellant in question remaining in detention.
The Judicial Review proceedings
"Furthermore, the factual and legal difficulties and the impossibility of adequately and fairly preparing for a FtT appeal were also the same or, possibly, were even more difficult in [AH's] and [RJ's] cases."
He then said this at paragraph 67:
"67. These similarities can be seen by an examination of a summary of the procedural history that I have set out in detail earlier in this judgment. The following conclusions may be drawn from that summary:
(1) The applications for asylum and for international protection from the faith-based persecution of Ahmadis by state-based action and private zealotry were the subject of the Country Guidance case of MN that had been promulgated only 9 months previously. Despite that detailed guidance, which the interviewers, decision-makers and FtT and UT judges deciding the appeals in this case all stated that they had had in mind, the salient requirements identified by the guidance were ignored. The failure is highlighted by the reasoned decision of Sullivan LJ in granting Abdul and Rashida permission to appeal the UT decision to the Court of Appeal. The failure at each previous level of decision-making occurred because of the rushed timetable imposed on each decision-maker by the FT Rules which prevented adequate evidence-gathering, submission drafting, preparation, presentation, consideration and decision-making by all concerned.
(2) The adverse decisions that were made at each level below the Court of Appeal were all based on a minute examination of inadequately prepared secondary parts of Abdul's and Rashida's cases leading to questionable adverse credibility findings which should not have been but were determinative of each decision.
(3) The inadequate preparation of all the required evidence, including the evidence relied on by the decision-makers, occurred through no fault of Abdul and Rashida or of their legal representative. Indeed, the work of their legal representative in preparing and conducting procedure, for an adjournment, for bail and for temporary admission were of an exceptionally high standard. This was particularly so given the impossibly short timescales and exceptionally difficult working conditions governing all of that representative's work. These arose as a result of the decisions taken by the SSHD on 9 July 2013 and not subsequently revoked that Abdul's and Rashida's asylum applications would be dealt with under the FT Rules."
"68. Conclusion. The applicable FT Rules were systematically unfair and unlawful due to the inability that they created of a hearing in the FtT or the UT that provided minimum acceptable standards of fairness and which enabled Abdul's and Rashida's cases to be presented fairly and adequately and to be decided following an appropriate consideration of all available evidence.
69. Moreover, the manner in which their cases were considered and the procedure adopted for their cases by both the FtT and UT was such that, even if the FT Rules were not systemically unfair, they operated in their particular cases so as to prevent them from obtaining a fair hearing.
70. It follows that their asylum applications were referred to a decision-making process that was inherently flawed in all its principal respects and that that process was unlawfully applied and operated. Thus, their asylum applications were never lawfully considered with the result that neither Abdul nor Rashida could or should have been removed or deported from the UK unless and until decisions had been taken following appropriate and lawful consideration of their asylum claims had occurred.
71. The overall conclusion is that no part of the period of their detention was lawful insofar as it was based on their likely removal from the UK within a reasonable timescale. This was because any lawful consideration of their asylum applications would have taken far longer to resolve than they could lawfully have been detained for. It also follows that they are entitled to substantial and not merely nominal damages."
"73. Discussion. These submissions are unsustainable for these reasons:
(1) The FT procedure was imposed on their arrival in the UK on 9 July 2013. The timescales started to run from that date. Had it been appreciated, as it should have been, that the FT procedure was both inappropriate and systemically unlawful, the ordinary procedure applicable to asylum applications would have applied. Subject to there being a risk that Abdul and Rashida would abscond, that procedure would inherently have taken longer than the maximum lawfully permissible period of detention pending removal.
(2) The only other basis for detention that was asserted was that each was an absconding risk. However, both Abdul and Rashida had claimed asylum as soon as they arrived at Birmingham airport, both had completely unblemished immigration histories, both were on any considered basis honest and reliable individuals claiming asylum for faith-based reasons and both had reliable friends, potential sureties and accommodation who were all apparently available to them.
(3) No structured risk assessment of their absconding risk was put in evidence and, by inference, was never carried out.
74. Conclusion. No alternative basis for lawfully detaining Abdul and Rashida for any part of the period between 9 July and 22 October 2013 has been made out. Indeed, there was no such lawful basis."
Having so stated, he rejected any suggestion that at least some part of the period of detention was lawful. He in terms found that no part of the period of detention was lawful.
"(1) The Detained Fast Track process as constituted between the 9th July 2013 and 22nd October 2013 is unlawful.
(2) The Asylum and Immigration (Fast Track Procedure) Rules 2005 are unlawful.
(3) The Claimants' detention between 9th July 2013 and 22nd October 2013 was unlawful and the Claimants are entitled to substantial damages for this period of detention.
(4) The Claimants' detention was in any event unlawful between the 9th July 2013 and 22nd October 2013 as their claims were not suitable for the Detained Fast Track process for the reasons set out at paragraphs [70 – 72] of the Judgment."
(1) First, it is unsatisfactory for there to be one adjudication for one part of the overall detention period and a second and separate adjudication for the other part or parts.
(2) Second, the question of when (if at all) the detention became unlawful needs to be considered at various stages throughout the detention period. Indeed the Secretary of State in the court below had complained that the respondents had never precisely identified a date from which the detention was said to have become unlawful.
(3) Third, Mr Lee's argument was predicated on there not being any risk of absconding which could justify detention and on there being no proper consideration or application of the general detention criteria. But while it seems to be the case that, prior to the decisions refusing asylum being made and the appeal process being initiated, the risk of absconding did not appear in the UK Border Agency documentation relating to detention, there do appear (on and after 24 July 2013) in the 1S.91R forms provided to the respondents notifications that they were assessed as likely to abscond: one reason given (among others) for that assessment being lack of close ties sufficient to make it likely they would stay in one place. Moreover, by that time their claims had now been rejected as not credible. Mr Lee mounted a strong attack on that assessment as to risk of absconding and on the stated reasons given for it. Suffice it to say, however, that such matters are, in my view, much better left to the first instance appraisal of a judge of the Administrative Court in the light of the evidence taken as a whole.
Lord Justice Singh:
Sir Jack Beatson: