QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| DETENTION ACTION
|- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
EQUALITY HUMAN RIGHTS COMMISSION
Miss C McGahey (instructed by Treasury Solicitor) for the Defendant
Ms S Harrison QC and Ms M Brewer (instructed by Clare Collier, Equality Human Rights Commission) for the Intervener
Hearing dates: 17th, 18th, and 20th December 2013
Crown Copyright ©
MR JUSTICE OUSELEY :
The statutory provisions
"(1) A person who may be required to submit to examination under paragraph 2 above may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter.
(2) If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A or 12 to 14, that person may be detained under the authority of an immigration officer pending—
(a) a decision whether or not to give such directions;
(b) his removal in pursuance of such directions."
"1.Asylum seekers may move freely within the territory of the host Member State. The assigned area shall not affect the inalienable sphere of private life and shall allow sufficient scope for guaranteeing access to all benefits under this Directive.
2.Member States may decide on the residence of the asylum seeker for reasons of public interest, public order or, when necessary, for the swift processing and effective monitoring of his or her application.
3.When it proves necessary, for example for legal reasons or reasons of public order, Member States may confine an applicant to a particular place in accordance with their normal law."
"Member States may exceptionally set modalities for material reception conditions different from those provided for in this Article, for a reasonable period which shall be as short as possible, when:
- an initial assessment of the specific needs of the applicant is required,
- material reception conditions, as provided for in this Article, are not available in a certain geographical area,
- housing capacities normally available are temporarily exhausted.
- the asylum seeker is in detention or confined to border posts.
These different conditions shall cover in any case basic needs."
"2. When it proves necessary and on the basis of an individual assessment of each case, Member States may detain an applicant, if other less coercive alternative measures cannot be applied effectively.
3. An applicant may be detained only:
(a) in order to determine or verify his or her identity or nationality;
(b) in order to determine those elements on which the application for international protection is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding of the applicant;
(c) in order to decide, in the context of a procedure, on the applicant's right to enter the territory;
The grounds for detention shall be laid down in national law."
The role of policies
"34. The rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised. Just as arrest and surveillance powers need to be transparently identified through codes of practice and immigration powers need to be transparently identified through the immigration rules, so too the immigration detention powers need to be transparently identified through formulated policy statements.
35. The individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided that the adopted policy is a lawful exercise of the discretion conferred by the statute: see In re Findlay  AC 318, 338. There is a correlative right to know what that currently existing policy is, so that the individual can make relevant representations in relation to it.
36. Precisely the same is true of a detention policy. Notice is required so that the individual knows the criteria that are being applied and is able to challenge an adverse decision."
"The Court stresses that where deprivation of liberty is concerned it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic and/or international law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of "lawfulness" set by the convention, a standard which required that all law be sufficiently precise to avoid all risk of arbitrariness, and to allow the citizen - if need be, with appropriate advice - to foresee, to a degree that is reasonable in the circumstances of the case, the consequence which a given action may entail."
The case law on the evolving DFT
"24. There is obviously force in the argument for the claimants that if there is no suggestion that they might run away then it cannot be strictly necessary to detain them as opposed to requiring them to comply with a fixed regime enabling detailed examination to take place. This, however, ignores the reality—large numbers of applicants have to be considered intensively in a short period. If people failed to arrive on time or at all the programme would be disrupted and delays caused not only to the individual case but to dealing with the whole problem. If conditions in the centre were less acceptable than they are taken to be there might be more room for doubt but it seems to me that the need for speed justifies detention for a short period in acceptable physical conditions as being reasonably necessary.
25. This does not mean that the Secretary of State can detain without any limits so long as no examination has taken place or decision been arrived at. The Secretary of State must not act in an arbitrary manner. The immigration officer must act reasonably in fixing the time for examination and for arriving at a decision in the light of the objective of promoting speedy decision-making."
"45. In Chahal's case 23 EHRR 413, 466, para 118 the Court of Human Rights said that the lawfulness of detention had to be seen against the substantive and procedural rules of national law "but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness". I do not see that either the methods of selection of these cases (are they suitable for speedy decision?) or the objective (speedy decision) or the way in which people are held for a short period (i.e. short in relation to the procedures to be gone through) and in reasonable physical conditions even if involving compulsory detention can be said to be arbitrary or disproportionate. The evidence of Mr Martin gives strong support to the view that it was appropriate, in the light of the Secretary of State's experience, for the Secretary of State to adopt the Oakington policy and that other alternative methods would practically not be effective.
46. The need for highly structured and tightly managed arrangements, which would be disrupted by late or non-attendance of the applicant for interview, is apparent. On the other side applicants not living at Oakington, but living where they chose, would inevitably suffer considerable inconvenience if they had to be available at short notice and continuously in order to answer questions.
47. 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. Accepting as I do that the arrangements made at Oakington provide reasonable conditions, both for individuals and families and that the period taken is not in any sense excessive, I consider that the balance is in favour of recognising that detention under the Oakington procedure is proportionate and reasonable. Far from being arbitrary, it seems to me that the Secretary of State has done all that he could be expected to do to palliate the deprivation of liberty of the many applicants for asylum here."
"…given the difficult administrative problems with which the United Kingdom was confronted during the period in question, with an escalating flow of huge numbers of asylum-seekers, it was not incompatible with Art.5(1)(f) of the convention to detain the applicant for seven days in suitable conditions to enable his claim to asylum to be processed speedily. Moreover, regard must be had to the fact that the provision of a more efficient system of determining large numbers of asylum claims rendered unnecessary recourse to a broader and more extensive use of detention powers."
"The choice of an acceptable system is in the first instance a matter for the executive, and in making its choice it is entitled to take into account the perceived political and other imperatives for a speedy turn-round of asylum applications. But it is not entitled to sacrifice fairness on the altar of speed and convenience, much less of expediency; and whether it has done so is a question of law for the courts….we adopt Professor Craig's summary of the three factors which the court will weigh: the individual interest at issue, the benefits to be derived from added procedural safeguards, and the costs to the administration of compliance. But it is necessary to recognise that these are not factors of equal weight. As Bingham LJ said in Thirukumar  Imm AR 402,414, asylum decisions are of such moment that only the highest standards of fairness will suffice; and as Lord Woolf CJ stressed in R v Home Secretary, ex parte Fayed  1 WLR 763,777, administrative convenience cannot justify unfairness. In other words, there has to be in asylum procedures, as in many other procedures, an irreducible minimum of due process. "
"Secondly, and perhaps more important, the consequences of the risk which most concerns the RLC may very well not be susceptible of appeal. If the record of interview which goes before the adjudicator has been obtained in unacceptably stressful or distressing circumstances, so that it contains omissions and inconsistencies when compared with what the applicant later tells the adjudicator, the damage may not be curable."
"23. But provided that it is operated in a way that recognises the variety of circumstances in which fairness will require an enlargement of the standard timetable - that is to say lawfully operated - the Harmondsworth system itself is not inherently unfair. A written flexibility policy to which officials and representatives alike can work will afford a necessary assurance that the three-day timetable is in truth a guide and not a straitjacket.
24. Here, what has been identified is a gateway risk of injustice, in the nature of things not case-specific but caused by potential rigidity in a system which requires genuine flexibility in its timetable.
25. We have recognised this risk and indicated what in our view needs to be done to obviate it. But, like Collins J, we do not consider that the system itself is inherently unfair and therefore unlawful. On the contrary, so long as it operates flexibly - as the Home Office accepts it should – the system can operate without an unacceptable risk of unfairness. Although therefore a material part of the RLC's concern needs to be addressed, Collins J was right to refuse relief, and the appeal consequently fails."
The current policy
"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 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; but where it is known or suspected that it may be, particular consideration should be given to entering the applicant into DFT/DNSA (See Section 2.2 below)."
"2.2 Quick Decisions
The assessment of whether a quick decision is likely in a case must be made based on the facts raised in each individual case. Cases where a quick decision may be possible may include (but are not limited to):
- Where it appears likely that no further enquiries (by the Home Office or the applicant) are necessary in order to obtain clarification, complex legal advice or corroborative evidence, which is material to the consideration of the claim or where it appears likely that any such enquiries can be concluded to allow a decision to take place within normal indicative timescales;
- Where it appears likely that it will be possible to fully and properly consider the claim within normal indicative timescales;
- Where it appears likely that no translations are required in respect of documents presented by an applicant, which are material to the consideration of the claim; or where it appears likely that the necessary translations can be obtained to allow a decision to take place within normal indicative timescales;
- Where the case is one likely to be certified as 'clearly unfounded' under s.94 of the Nationality, Immigration and Asylum Act 2002."
"is that certain individuals are unlikely to be suitable for entry or continued management in the DFT. These persons are:
- Women who are 24 or more weeks pregnant;
- Family cases…;
- [Children whose date of birth is not disputed];
- Those with a disability which cannot be adequately managed within a detained environment...;
- Those with a physical or mental condition which cannot be adequately treated…or managed… within a detained environment;
- Those who clearly lack the mental capacity or coherence to sufficiently understand the asylum process and/or cogently present their claim. This consideration will usually be based on medical information, but where medical information is unavailable, officers must apply their judgment as to an individual's apparent capacity;
- Those for whom there has been a reasonable grounds decision taken (and maintained) by a competent authority stating that the applicant is a potential victim of trafficking or where there has been a conclusive decision taken by a competent authority stating that the applicant is a victim of trafficking;
- Those in respect of whom there is independent evidence of torture."
"Detention of asylum seekers for a short period of time 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 in 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."
"Continued detention may also be merited in some cases irrespective of decision time scale, 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."
The Claimant's case
(1) There are now considerably fewer asylum claims and fewer in the DFT than at the time of Saadi, so the need to avoid any delay in the process was diminished; there was no evidential justification for the same detention criteria being applied to those who appealed against the refusal of their claim.
(2) The average period of detention in DFT was at least four times longer than the 7-10 days contemplated in Saadi, which was largely due to the inclusion of the appeals process in the DFT.
(3) There was now no nationality list to guide decision-makers on suitability: the only criterion was whether it was thought that a quick decision could be made; the focus was on operational issues, such as whether an unsuccessful applicant could be removed quickly; there was no clear guidance, such as a nationality list, as to what cases would be considered suitable, and a real risk that unsuitable claims were not identified and removed from the DFT.
(4) The range of cases now considered fit for inclusion was now much broader, and included cases previously thought of as inherently too complex for a quick decision: FGM, homosexuality, domestic violence from countries such as Pakistan, torture and rape.
(5) The already criticised screening process did not seek or have the information necessary for the NAIU to decide whether a case was capable of quick decision or suitable for the DFT on a consistent basis: the screening process was not directed to suitability for the DFT, the standard questioning was inadequate, inconsistent in scope and detail, partly at least because the policy itself was so vague and lacking in specific guidance. Nor was the screening interview the place where claims of a sensitive nature were likely to be made. The range of cases now potentially included was too broad and vague for the screening process as currently operated. Problems went beyond the aberrant case.
(6) The scope for persuading the SSHD to take a case out of the DFT was very limited, and errors at the screening stage on suitability were unlikely to be remedied; there was very little flexibility over the handling of cases in the DFT, or over their removal if unsuitable; the speed of the process made judicial review an unrealistic remedy. The safeguards for those who were unsuitable or potentially unsuitable for the DFT were ineffective, notably for victims of torture and trafficking. In reality, once a claim entered the DFT, the onus to show that it should be removed lay on the asylum applicant.
(7) The time elapsing between entry to the DFT and the substantive asylum interview, indicatively between 10 and 14 days, was not available for preparation of the claim because the SSHD did not allocate a legal representative to the applicant till at most a very few days before the interview, and the time after the interview for further representations was curtailed as the decision was issued the next day. Such a period of inactivity was not reasonably required for the proper operation of the DFT. The shortness of the time for instructing lawyers and the circumstances in which instructions had to be given, including the fact of detention itself, made it impossible to take proper instructions and to obtain supporting evidence. The actual decision-taking timetables were too short for all but the most straightforward cases. The shortness of the available time had a more severe impact on the vulnerable applicant, notably victims of torture or trafficking, or of other sexual violence, or who were mentally disturbed.
(8) The appeal process provided few safeguards if any: entry into the fast-track appeals process was automatic for those detained in the DFT; there was no prior or separate consideration of the continued suitability of the DFT for an individual's appeal; timescales were too short to permit the proper presentation of evidence; the combination of an accelerated appeals process and detention the while was a substantial impediment to the fairness of the process; the FTT was very reluctant to permit the removal of a case from the fast-appeals track, because the hearing itself was the only effective point at which such an application could be made; a significant percentage of appellants were unrepresented.
(9) Oakington had closed and DFT detainees were held in Removal Centres in conditions of much greater security than had been regarded as appropriate in Saadi.
The facts and circumstances of detention in the DFT
Conditions in detention