England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		9 May 2013

JUDGE SYCAMORE:

1. The claimant, Irfan Ahmed, a national of Pakistan, challenges the defendant's processing of his asylum claim through the Detained Fast Track Procedure ("DFT") and his detention during that period.
2. The claimant's asylum claim, which was made on 11 January 2013, was refused by the defendant on 21 February 2013 and the claimant's subsequent appeal to the First Tier Tribunal was heard on 28 March 2013 and dismissed in a determination promulgated on 4 April 2013.
3. Permission was granted by Nicholas Padfield QC, sitting as a Deputy Judge of the High Court, following an oral permission hearing on 22 February 2013. The issue, in essence, is whether the delay in interviewing the claimant was excessive contrary to the defendant's DFT policies and as such unlawful. The claimant seeks declaratory relief and, in the event the relief is granted, seeks a transfer to the Queen's Bench Division for a damages claim to be dealt with.
4. The claimant was at all times an illegal entrant. He claimed to have arrived in the United Kingdom in 2006 on a visitor's visa and knowingly overstayed. No trace of the claimant was found on the UKBA visa system or fingerprint systems.
5. It was not until 25 December 2012 that the claimant was arrested by the Lancashire Police during a routine traffic stop. He acknowledged that he was in the country illegally.
6. A chief immigration officer considered his case and determined that he was a illegal entrant, as defined by section 33(1) of the Immigration Act 1971 (as amended), as he had provided no evidence of lawful entry to the United Kingdom, and he was detained.
7. The claimant was then inducted into Morton Hall IRC on 28 December 2012. His application for temporary admission, made on 30 December 2012, was refused on 31 December 2012. On 11 January 2013 the claimant claimed asylum and, as a consequence, removal directions were cancelled and arrangements were made for the claimant to have a face-to-face interview on 25 January 2013. On 16 January 2013 the claimant was moved to Tinsley House. On 17 January 2013 a screening interview took place and it was determined that the claimant was suitable for DFT and consequently he was moved to Harmondsworth IRC on 19 January 2013. At interview on 23 January 2013 the claimant reported that he had high blood pressure, kidney problems and depression. He was referred to Healthcare. An asylum interview was booked for 28 January 2013 with an Urdu interpreter. That interview was cancelled on 28 January 2013 following a telephone call from the claimant's solicitors, who indicated that the claimant was unfit for interview due to the reported kidney problem. He was referred to Healthcare at Harmondsworth, who deemed him unfit for interview that day, and the interview was rescheduled and in fact took place on 20 February 2013. The asylum application was refused on 21 February 2013. Thus a period of 34 days elapsed between the defendant's decision to treat the claimant's case as a DFT case and his interview.
8. The claimant did not avail himself of the opportunities available to him to apply to the First Tier Tribunal for removal of his case from the DFT under rule 30 of the Tribunal (Fast Track Procedure) Rules 2005, nor did he apply for bail.
9. In R (Suckrajh) v Asylum and Immigration Tribunal [2011] EWCA Civ 983, Thomas LJ said this about DFT:

"1…. Under this procedure asylum seekers are detained at immigration detention facilities while their claims and any appeal are determined. The stated objective of the procedure is to enable straightforward claims to be determined speedily. Under the procedure, immigration officers of the UKBA are entrusted with making the decision on allocation to the DFT. There is a right to appeal to immigration judges to remove the case from the procedure or grant bail…."

10. The DFT Process-Timetable Flexibility sets out the following key principles:

"2.1 Key Principles.

"The DFT and DNSA timetable is intended to deliver decisions in up to 7-14 days after entry to the process, depending on the type of decision and normal developments in the case.

It is important that this timetable is maintained as far as is reasonably possible, and that the time an individual is detained is kept to the minimum. However, the DFT and DNSA processes are built on an overriding principle of fairness, and as a consequence, timetable flexibility or removal from the DFT and DNSA processes must be considered in all situations where fairness demands it."

In the DFT Processes Policy at 2.2:

"Quick Decisions.

For DNSA cases, the indicative timescale from entry to the process in the appropriate Immigration Removal Centre (IRC) to decision service will be around 10-14 days. For DFT cases, the respective indicative timescale will usually be quicker. The timescales are not rigid and must be varied when fairness or case developments require it."

11. The claimant maintains that a period of 34 days falls wholly outside the policy and that the defendant failed to apply the "Quick Decision" principle when reviewing the claimant's detention and that she did not apply her flexibility policy.
12. Additionally, the claimant asserts that the defendant failed to review the suitability of the claimant to remain in the DFT after the claimant had been assessed as unfit for interview on 28 January 2013, referring to paragraph 3.2 of the flexibility policy, which sets out as follows:

"3.2 Fitness for Interview.

An applicant's fitness for interview is a judgment to be made by IRC Healthcare staff only.

If Healthcare staff do not certify the applicant as being unfit for interview, the interview should recommence immediately on the same day or as soon as is reasonably practicable and without undue delay. If Healthcare staff certify the applicant as being unfit for interview, care should be taken to ascertain whether the applicant is likely to be fit for interview within DFT timescales. Suitability for DFT Processes must be reviewed."

13. There are therefore no stringent deadlines.
14. On behalf of the claimant, it was urged that I took account of examples given in the "Report of the Independent Chief Inspector of UKBA Asylum, a thematic inspection of the Detained Fast Track" published on 23 February 2012, and examples given there of timescales of interviews and decisions. I do not find that a helpful or appropriate approach to adopt. The question of whether processing through DFT is suitable and the particular timetable depends on the particular facts of the case in question.
15. Before I deal with the specific circumstances of this case, I remind myself of the observations of Thomas LJ Suckrajh:

"35. In Saadi, it was made clear that the power had to be exercised in a manner that was not arbitrary. The proper exercise of the power to prevent arbitrariness was examined in Saadi by considering the approach at common law and under the Convention. In the House of Lords, Lord Slynn considered the issue from both perspectives; in considering the common law approach, he made clear at paragraphs 22-26 that the power given under paragraph 16(1) to detain pending examination and a decision was a power to detain for a period up to the time the examination was concluded and a decision taken. Although there was no need for the Home Secretary to show that it was necessary to detain for the purposes of examination in that the applicant might abscond, the powers of detention had to be exercised reasonably. The power to detain was not a power to detain for examination whenever it might take place. The power could not be exercised arbitrarily. The analogous principles applicable to detention for removal under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 set out in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 constrained the exercise of the power.

"36. The Hardial Singh principles were summarised by Dyson LJ in a case relating to the power to detain a convicted person prior to deportation, R(I) v Secretary of State for the Home Department [2003] INLR 196 at paragraph 46 and were approved by the Supreme Court in R (WL Congo) at paragraphs 22-30, 171-4, 189 and 250:

i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose.

ii) The deportee may only be detained for a period that is reasonable in all the circumstances.

iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention.

iv) The Secretary of State should act with reasonable diligence and expedition to effect removal.

[...]

"40. The policy applicable to the DFT procedure, DFT & DNSA – Intake Selection, made clear at paragraph 2 that a case should only be allocated to DFT where a quick decision could be made. The indication of timescales given as applicable in ordinary circumstances was 10-14 days in DNSA cases and considerably quicker in DFT cases; it was made clear in the light of a ministerial statement that the period must be reasonable and judged on the facts of each case. Cases should not be assigned where further enquires would be necessary by the UKBA or the applicant. As the policy is very closely related to the power to detain as it describes the type of case suitable for allocation to the DFT procedure, it qualifies, in my view, the power as it is a necessary guide to the cases that can be allocated to the DFT procedure."

16. In my judgment the application for judicial review must fail.
17. First, the claimant had alternative remedies available to him, apart from the unlawful detention claim, in the form of the availability of the application to the First Tier Tribunal for removal of his case from DFT or for bail, of which the claimant did not avail himself.
18. Second, there is no substance in the claimant's complaint about the defendant's approach to the processing of his asylum claim through DFT. It is helpful to consider what was said by Latham LJ in HK (Turkey) v Secretary of State for the Home Department [2007] EWCA Civ 1357 at paragraph 26:

"26. The European Court of Human Rights, in its judgment in Saadi, helpfully set out the nature of detention under the fast track procedure in the following terms:

40. Detention of a person is a major interference with personal liberty, and must always be subject to close scrutiny. Where individuals are lawfully at large in a country, the authorities may only detain if -- as the Court expressed the position in Vasileva (referred to above) -- a 'reasonable balance' is struck between the requirements of society and the individual's freedom. The position regarding potential immigrants, whether they are applying for asylum or not, is different to the extent that, until their application for immigration clearance and/or asylum has been dealt with, they are not 'authorised' to be on the territory. Subject, as always, to the rule against arbitrariness, the Court accepts that the State has a broader discretion to decide whether to detain potential immigrants than is the case for other interferences with the right to liberty. Accordingly, and this finding does no more than apply to the first limb of Article 5 paragraph 1(f) the ruling the Court has already made as regards the second limb of the provision, there is no requirement in Article 5 paragraph 1(f) that the detention of a person to prevent his effecting an unauthorised entry into the country be reasonably considered necessary, for example to prevent his committing an offence or fleeing. All that is required is that the detention should be a genuine part of the process to determine whether the individual should be granted immigration clearance and/or asylum, and that it should not otherwise be arbitrary on account of its length.

[...]

45. It is plain that in the present case the applicant's detention at Oakington was a bona fide application of the policy on "fast-track" immigration decisions. As to the question of arbitrariness, the Court notes that the applicant was released once his asylum claim had been refused, leave to enter the United Kingdom had been refused and he had submitted a notice of appeal. The detention lasted for a total of 7 days, which the Court finds not to be excessive in the circumstances. The Court is not required to set a maximum period of permitted detention, although it notes that the present form of detention is ordered on administrative authority alone.

27. In my judgment this puts into proportion the question with which we are concerned. It underlines the fact that the question that had to be asked was simply whether or not, on its face, the appellant's claim for asylum could be dealt with properly under the fast track procedure in accordance with the published criteria. For the reasons that I have given, it seems to me that the officials who authorised the appellant's detention were perfectly entitled to conclude that the issues likely to be raised by this application could be speedily resolved one way or the other. I would accordingly dismiss the appeal."

19. The defendant obtained the material information from the claimant during the screening interview on 17 January 2013 and determined that the case was suitable for DFT. In my judgment the defendant was entitled to conclude that the issues which the claimant was likely to raise could be speedily resolved one way or the other and to determine that the case was suitable for the DFT. It was the case that the claimant was unfit on medical grounds for interview on the scheduled day, 28 January 2013. It was acknowledged (see the witness statement of Matthew Burton of Harmondsworth DFT of 10 April 2013) that:

"There is and always has been a risk that the claimant would abscond if granted temporary admission."

20. As I observed at paragraph 11 of this judgment, there are no stringent deadlines in the policy of dealing with DFT cases.
21. In a letter of 5 February 2013, which was in reply to a request from the claimant's solicitor for temporary admission and removal from DFT, the defendant clearly considered the claimant's continued detention, noting in particular:

"…. Your client's case seems, at this stage, one which may be decided quickly and his circumstances mean that he does not fall under the exclusion criteria and therefore his case remains suitable for the fast track process."

At page 2 of the same letter the defendant sets out reasons why DFT was appropriate:

"As your client does not fall under the exclusion criteria, and his case is one which it appears, at this stage, can be concluded quickly and in absence of any reasons submitted by you to the contrary, there is no reason to drop your client's case out of Fast-Track system.

It is noted that your client has been illegally present in the UK for over 7 years. Taking these factors into account, it is not considered likely that your client would comply with any conditions or restrictions attached to a grant of temporary admission.

It is noted that you claim that your client has a brother present in the UK. However, no evidence has been submitted to verify that these family members are dependants of your client and therefore detention within the fast track process remains appropriate at this time."

22. By a letter of 12 February 2013, which was in reply to a further request from the claimant's solicitors for removal from DFT, it was explained on behalf of the defendant that the claimant's suitability for DFT was being reviewed in accordance with DFT policies:

"Consideration has been given to the Detained Fast Track Processes Suitability Policy which states that 'An applicant may enter into or remain in DFT/DNSA processes only if there is a 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 if none of the Detained Fast Track Suitability Exclusion Criteria apply'.

[...]

Your clients individual circumstances have been reviewed and it is not considered your client meets any of the exclusions criteria. Furthermore it is noted that your client is an overstayer in the UK.

Furthermore, there has been no indication from Healthcare unit that your client's condition renders him unsuitable for detention. Your client is currently awaiting his asylum interview to be rescheduled, once a date has been has been booked we will of course inform you. We are we are in the process of obtaining your client's medical records and Healthcare. Should any new information come to light, your client's detention will of course be reviewed.

All of the above points have been carefully considered along with the points made in your email dated 05/02/2013. Unfortunately for those reasons, I find myself unable to grant your client release from the Detained Fast Track Process."

23. The decision letter of 21 February 2013, which followed the rescheduled interview on 20 February 2013, made clear that suitability for DFT had been reviewed in the light of representations from the claimant's legal representatives:

"40. Your representatives have stated that they do not think your case is suitable for fast track due to your physical and mental condition, in that it cannot be adequately treated within a detained environment.

[...]

44. Your individual circumstances have been reviewed and it is not considered despite your representatives claims that any of the exclusion criteria above have been identified or met.

45. You have been assessed by Healthcare at Harmondsworth IRC as being suitable for detention.

[...]

"47. On 20/02/2013 when you were due to be interviewed on the second occasion, you again claimed that you were unfit for interview.

[...]

50. On the basis of this objective medical assessment the interviewing officer made a decision that the interview could go ahead, your representative continued to maintain that you were unfit for interview. They were informed that you had been assessed as fit for interview and this had been confirmed by Healthcare at their request, further to the written confirmation, by telephone with Harmondsworth Healthcare. On the basis of the objective medical assessment made by Healthcare in Harmondsworth, your representative was informed that, if you refused to go ahead with the interview, a decision would be made on non-compliance. You then agreed to be interviewed and on numerous occasions before and during the interview when you were asked if you were still feeling fit and well to be interviewed you answered in the affirmative.(AIR) It is noted that you had no problems answering the questions put to you and that you stated that you understood all of those questions (AIR232)."

24. In his statement of 10 April 2013, Mr Burton of Harmondsworth IRC said at paragraph 12:

"Detention reviews were completed by the Harmondsworth team on 22/01/2013, when he entered the fast track process, 29/01/2013, following his failed interview and on 6/02/2013, 19/02/2013 and 19/03/2013 previous detention reviews were completed outside the DFT process."

25. In my judgment, it is clear from those letters and the record of reviews that the defendant did consider the policies and decided to seek to keep the claimant in the fast track. They were sensible and unchallengeable reasons and, in my judgment, the defendant reasonably concluded that the case remained suitable for the fast track in circumstances in which the interview had had to be postponed and in which the defendant had properly concluded, on the information available on the screening interview of 17 January 2013, that the claimant was suitable for DFT.
26. The defendant also considered suitability in the context of the earlier certification by Healthcare staff that the claimant was unfit for interview on 28 January 2013. The fact that, in the event, the period was longer than the desired timetable does not make the defendant's approach unlawful or otherwise susceptible to challenge. As the "Key Principles" make clear at 2.1;

"Timetable flexibility or removal from the DFT and DNSA processes must be considered in all situations where fairness demands it",

and at 2.2,

"The timescales are not rigid and must be varied when fairness or case developments require it…."

27. Against the background of the postponement of the interview and the regular reviews before the rescheduled interview took place, the actions of the defendant were both fair and lawful.
28. Finally, counsel for the claimant invited me to consider issuing guidance as to what a suitable timeframe might be in a DFT case. As I have already indicated, cases of this nature are fact sensitive and it is inappropriate to do so.
29. For all of those reasons, this claim for judicial review is dismissed.