QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|(1) TAHIDUL HOSSAIN
(2) ZUBERIA AULEEAR
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Stephanie Harrison QC and Shu Shin Luh (instructed by Wilson Solicitors LLP) for the 2nd Claimant
Lisa Busch QC and Rory Dunlop (instructed by Government Legal Department) for the Defendant
Hearing dates: 25 and 26 February, 22 and 25 April
Crown Copyright ©
|I INTRODUCTION||Paragraphs 1–3|
|II THE SECRETARY OF STATE'S POLICIES||Paragraphs 4–6|
|Immigration detention||Paragraphs 7–15|
|The detained fast-track policy 2000 – July 2015||Paragraphs 16–32|
|Current policy: handling asylum claims in detention||Paragraphs 33–47|
|III THE INDIVIDUAL CLAIMANTS||Paragraph 49|
|Tahidul Hossain||Paragraphs 50–61|
|Zuberia Auleear||Paragraphs 75–86|
|IV THE GENERIC EVIDENCE||Paragraph 93|
|The claimants' evidence||Paragraphs 94–100|
|The Secretary of State's evidence||Paragraphs 101–124|
|V GROUNDS OF CHALLENGE||Paragraphs 125–127|
|DII as an unlawful process having regard to R (JM)||Paragraphs 128–134|
|Fairness not explicitly stated in policy||Paragraphs 135–139|
|Inherent unfairness in the DII: the generic challenge||Paragraphs 140–156|
|Breach of public sector equality duty||Paragraphs 157–166|
|The test cases||Paragraphs 167–182|
|VI CONCLUSION||Paragraph 183|
Mr Justice Cranston:
II THE SECRETARY OF STATE'S POLICIES
Chapter 55 of the EIG
"Unaccompanied children and young persons under the age of 18…
Those suffering from serious medical conditions which cannot be satisfactorily managed within detention.
Those suffering from serious mental illness which cannot be satisfactorily managed within detention…
Those where there is independent evidence that they have been tortured.
People with serious disabilities which cannot be satisfactorily managed within detention.
Persons identified by the competent authorities as victims of trafficking…"
"Care must also be taken not to stray beyond interpretation into what is in substance policy formation by judicial glosses which unduly circumscribe what is meant to be a discretionary exercise by the executive branch of government": .
Where the policy does apply, there is a high hurdle to overcome to justify detention: .
Rules 34 and 35
"(3)… any detained person who he is concerned may have been the victim of torture."
The reports must go to the Secretary of State.
"it must have some corroborative potential (it must 'tend to show') that a detainee has been tortured, but it need not definitively prove the alleged torture".
"If the report constitutes independent evidence of torture, consider whether there are very exceptional circumstances such that detention is appropriate.
Very exceptional circumstances could arise where, for example, release would create an unacceptably high risk of absconding, of reoffending or of harm to the public. There will not be very exceptional circumstances in the case of a routine detention absent other reasons, e.g., a removal without a high absconding risk or harm issue - see Ch. 55 of the EIG..."
The MLR policy
The detained fast-track policy 2000 – July 2015
The detained-fast-track in outline
" 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. Without reproducing the valuable discussion of the development of this branch of the law in Craig, Administrative Law 5th edition (2003), chapter 13, 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 Secretary of State for the Home Department v. 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. Secretary of State for the Home Department, Ex p 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."
The Detention Action challenges
" The unacceptably high risk of unfairness may be resolved in a number of ways; it would not have to be by changing the instruction of lawyers, although that seems the obvious point to start given the seemingly indefensible period of inactivity. However, if the screening process were improved or if Rule 35 became an effective safeguard or if greater time were more readily allowed, the change to the way in which lawyers are instructed might not be necessary. It is the failings elsewhere which lead to the allocation of lawyers as the point at which something has to change."
R (JM) and the July 2015 consent orders
"1. The Detained fast-track (DFT) as operated at 2 July 2015 created an unacceptable risk of unfairness to vulnerable or potentially vulnerable individuals within the meaning of 2 below. There was an unacceptable risk of failure:
a. to identify such individuals; and
b. even when such individuals were identified, to recognise those cases that required further investigation (including, in some cases, clinical investigation).
This created an unacceptable risk of failure to identify those whose claims were unsuitable for a quick decision within the DFT.
2. In paragraph 1 above "vulnerable" or "potentially vulnerable" individuals include but are not limited to asylum seekers who may be victims of torture, significant ill-treatment, human trafficking, or may be suffering from mental disorder or other physical or mental impairment which may affect their ability to present their claims in the DFT…
4. Having regard to what each said in their asylum interviews, each of the four representative Claimants should have been but was not identified as having a claim that was unsuitable for a quick decision and was therefore, unlawfully subject to the DFT process from entry into it."
Current policy: handling asylum claims in detention
The DAC team and the Detention interim instruction (DII)
"4. All cases in detention must be held in accordance with general detention criteria, as set out in Chapter 55 of the Enforcement Instructions and Guidance (EIG). When deciding to detain and/or whether to maintain detention, staff must always consider the provisions of EIG 55.10."
"11. Allegations of torture should be carefully considered before referring a case to the Detained Asylum Casework. Where such allegations are supported by independent evidence such as medical records or a Rule 35 report, the case should not normally be referred to the Detained Asylum Casework."
" …A decision on the asylum claim would normally need to be taken within 28 days of the initial asylum claim, but you will need to consider any requests for further time, for example, to obtain documents or translations to substantiate the claim. You must keep under review the time that it is likely to take to make a decision on the asylum claim. If it becomes apparent that, for any reason (including, for example, the applicant's need to obtain further evidence, or operational reasons) the decision is likely to be significantly delayed, then detention should be reviewed in accordance with Chapter 55 of the EIG to ensure detention remains lawful."
The Process map
5. Once an application is transferred to the relevant [immigration removal centre], a DAC officer will conduct an induction interview within a day of their arrival. The purpose of the induction interview is to ascertain if the applicant needs assistance from a publically funded legal representative or if they have instructed a firm privately. The applicant will be asked for consent to access medical information and asked whether they have any medical conditions that the Home Office needs to be aware of. They will also be asked whether they have any family in the UK and whether they wish to submit any documents in support of their application. The applicant will also be able to request a gender specific interviewer, their preferred language for the interview and/or for their asylum interview to be deferred for a short duration, for example, if they are expecting to instruct a firm privately.
6. If a duty legal representative is requested, then a referral will be made to a legal firm who has a contract with the Legal Aid Agency (LAA) to provide representation for the case…
7. The DAC team will then be responsible for booking the asylum interview. Although there are no set timescales for the booking of an asylum interview, it will largely depend on the individual circumstances of the case as to when an interview is booked. Officers should ensure that the applicants have sufficient time to instruct his/her legal representatives. As a rough guide, unless an applicant expressly requests an earlier interview, asylum interviews should not be booked any earlier than five working days from the date when the referral is sent to the legal representatives. This is consistent with national asylum operations.
8. There is also no automatic period after an interview for the submission of further evidence and/or written legal representations. But if the interviewing officer decides to ask for further evidence or if the applicant requests additional time in which to submit information of relevance to the claim, the applicant should be given a reasonable time in which to provide it – normally up to five workings days. More time can be given where it is appropriate to do so.
9. However, the interviewing officer must, at the end of the asylum interview, agree a deadline for the submission of further evidence or legal representations. This does not prevent the applicant or the legal representatives from submitting a written request for an extension of the timescales after the interview. Whether or not the deadline is extended will depend on the individual circumstances of the case and the justification given for the request.
Handling of HB/FfT referrals and MLR reports
10. Caseworkers should follow the guidance set out in the Asylum Instructions on Medico-Legal Reports from the Foundations, for asylum claims involving allegations of torture or serious harm, where a MLR from the 'Medico Foundation Medico-Legal Report Service' at Freedom from Torture ["FfT"] or the Helen Bamber Foundation ["HB"] is likely to form part of the evidence… Nevertheless if an appointment letter from the Foundations is submitted at any time before the [First Tier Tribunal] hearing, the applicant is likely to be released from detention."
"Maintaining effective immigration control is a legitimate policy objective. Accordingly, the government expects anyone who comes to the UK to observe immigration law. Those without immigration status are expected to return home voluntarily at the first opportunity and not to make spurious or opportunistic applications to remain, including for asylum – which detract valuable resources from those with a genuine need for protection, merely in order to delay or frustrate the enforcement of an earlier or imminent decision which would result in their removal. Simply claiming asylum cannot be sufficient reason in itself for releasing from detention where there are otherwise legitimate immigration or public order reasons for detaining an illegal migrant. If it were so it would provide a perverse incentive to claim asylum wholly at odds with the intention of the Refugee Convention and to the detriment of genuine refugees and the effectiveness of the immigration system.
Unfortunately, there will always be some individuals who are determined not to comply with immigration law and need to be removed from the UK. For these individuals a decision to detain in order to enforce immigration control pursues a legitimate aim and is in accordance with the law. That said, depriving someone of their liberty should never be undertaken lightly and there is a presumption in favour of temporary admission or release. It is also clear that detention must not prevent the fair and proper consideration of any application to remain in the UK, particularly when the issue in question is the safety of the applicant on return to their own country.
It is in everyone's best interests – the applicant's, the government's, the taxpayer's – to have an asylum system where decisions are taken quickly and effectively so that protection can be granted to those who need it and those found not to be in need of protection are removed swiftly. It is also right that resource is focused on those who are in genuine need of protection and that those who break immigration laws are not encouraged to make opportunistic and spurious asylum claims simply to frustrate removal and remain in the UK. It cannot, therefore, be right that an individual cannot be detained purely on the basis of claiming asylum no matter how weak the claim or how high the risk of harm and/or absconding associated with the claimant.
If the Home Office were not allowed to consider the asylum claims of such individuals whilst detaining them with a view to removal, it would significantly weaken immigration control, as it would provide a very strong incentive for those facing enforced removal to claim asylum opportunistically, simply to avoid that action. Releasing cases just because they had claimed asylum, even if they had flagrantly flouted immigration laws would likely result in an increase in absconding, and of abusive and meritless claims adding cost and time burdens to the non-detained process, and then a need to re-detain prior to removal. This would have a significantly detrimental effect on the health of the overall asylum process and on immigration control. It is an unfortunate reality that in some cases individuals will not comply voluntarily with a requirement to leave the UK and their removal must be enforced. As I have already set out in this witness statement, Home Office internal management information shows that an average of 30 individuals a week claim asylum from within detention only after removal directions are set."
"This is in addition to the fact that unlike non-detained asylum cases, asylum cases processed in detention are given automatic access to legal consultation before the interview, legal representation at the interview and detained applicants can seek further advice from their lawyer in the period between the interview and the decision being served. Asylum seekers whose cases are processed in detention therefore receive additional support – particularly in relation to access to legal advice – to safeguard against any (perceived or real) difficulties faced by bringing an asylum claim whilst detained."
- "Asylum interviews will not routinely be cancelled if a Rule 35 has not been completed even if a representative or client consider one should be;
- The asylum interview is the appropriate place to disclose any relevant facts of an asylum claim;
- Rule 35 reports and detention are reviewed regularly including at the conclusion of the interview;
- Delaying an interview only adds to the time spent in detention and extends the period of time your client has to wait to be interviewed which we do not think is acceptable in terms of liberty or public funds.
Interviews with the Home Office should proceed unless there are exceptional circumstances."
The Shaw Report
"Recommendation 9: I recommend that there should be a presumption against detention for victims of rape and other sexual or gender based violence. (For the avoidance of doubt, I include victims of FGM as coming within this definition.)
Recommendation 10: I recommend that the Home Office amend its guidance so that the presumptive exclusion from detention for pregnant women is replaced with an absolute exclusion.
Recommendation 11: I recommend that the words 'which cannot be satisfactorily managed in detention' are removed from the section of the EIG that covers those suffering from serious mental illness.
Recommendation 12: I recommend that those with a diagnosis of Post Traumatic Stress Disorder should be presumed unsuitable for detention.
Recommendation 13: I recommend that people with Learning Difficulties should be presumed unsuitable for detention.
Recommendation 14: I recommend that transsexual people should be presumed unsuitable for detention.
Recommendation 21: I recommend that the Home Office immediately consider an alternative to the current Rule 35 mechanism. This should include whether doctors independent of the [immigration removal centre] system (for example, Forensic Medical Examiners) would be more appropriate to conduct the assessments as well as the training implications."
"First, the Government accept Mr Shaw's recommendations to adopt a wider definition of those at risk, including victims of sexual violence, individuals with mental health issues, pregnant women, those with learning difficulties, post-traumatic stress disorder and elderly people, and to recognise the dynamic nature of vulnerabilities. It will introduce a new "adult at risk" concept into decision-making on immigration detention with a clear presumption that people who are at risk should not be detained, building on the existing legal framework. This will strengthen the approach to those whose care and support needs make it particularly likely that they would suffer disproportionate detriment from being detained, and will therefore be considered generally unsuitable for immigration detention unless there is compelling evidence that other factors which relate to immigration abuse and the integrity of the immigration system, such as matters of criminality, compliance history and the imminence of removal, are of such significance as to outweigh the vulnerability factors. Each case will be considered on its individual facts, supported by a new vulnerable person's team."
III THE INDIVIDUAL CLAIMANTS
"The applicant appears to have entered the UK some fifteen years ago and remained illegally since that time. He has proved to have a propensity to deceive, he provided 3 different IDs to the Home Office; he was also found to be in possession of a fraudulent passport. Further to this the applicant only claimed asylum after arrest and detention which on face value appears to be an attempt to frustrate removal. Given his previous history, I have no confidence that that applicant would comply with reporting and detention in DAC is appropriate. No mit[igating] circs."
"…I consider that in the particular circumstances of this case there are very exceptional reasons why the detention should be maintained despite the contents of the [Rule 35] report.
- The claimant has lived illegally in the UK for over 15 years
- He failed to regularise his stay at the end of his visa and failed also to leave the UK as required by the conditions of his visa. There is no reason to believe that he would have ever claimed asylum had he not been arrested as an immigration offender.
- Given the claimant's poor immigration history, and a belated asylum application, he will be in no doubt that his removal is imminent and that the Secretary of State for the Home Department will seek to enforce his removal at the earliest possible, if he is unsuccessful in his application.
- His failure to comply with the conditions of his visa and illegal working, he cannot be relied upon to comply with any conditions
- Therefore given the high risk of absconding, there are very exceptional reasons why detention should be maintained despite the contents of the [Rule 35] report."
There were similar reviews maintaining his detention conducted on 3 November 2015, 13 November 2015, 20 November 2015 and 25 November 2015.
"The applicant has overstayed and worked illegally in the UK since 2008. He was only encountered by chance and only claimed asylum after arrest and detention which on face value may suggest it is an attempt to frustrate removal. I also note that the applicant upon encounter told the [immigration officers] that he had been granted asylum in 2008 which shows he has a propensity to deceive. Given all of this I consider it likely he would abscond if placed on reporting. No mit[igating] circ[umstance]s: Suitable for DAC."
"I then reviewed MNK's detention on 6 November 2015. In doing so, I had regard to MNK's immigration history and to the Rule 35(3) report. I noted that MNK had overstayed his visa by several years and had taken no steps to regularise his stay beyond the expiry of his leave. The circumstances of his arrest, during illegal working, suggested an economic motive behind his illegal stay in the UK. I could see no evidence to suggest that MNK would have ever claimed asylum had he not been encountered by the police and consequently faced with removal. I was fortified in this view by the fact that MNK, on arrest, insisted to the police officers that he had been granted asylum in 2008… I therefore considered that in the particular circumstances of MNK's case, there was a very high risk of absconding which in turn meant there were very exceptional reasons as to why detention should be maintained."
"My only issue is I have collected lots of things through the years and it is sitting in a room, I only was allowed to bring some of my very basic needs with me so my concern is how will I get my valuable things from my room.
Will I be able to apply for a bail to be able to pack up my stuff and book my own flight? I also need to do a cargo as I don't have nothing back home so I will need my things with me, will I be allowed to do this?
Can you please explain the process to me I would really appreciate."
Later, Ms Auleear explained her email to the voluntary deportation team as being sent at a time of stress.
"There is no evidence to suggest subject is unsuitable for detention as per Chapter 55 [of the] EIG. Subject was previously compliant with reporting however as detention is not deemed at face value to be prolonged, detention is appropriate in this case. Provisionally accepted for DAC."
IV THE GENERIC EVIDENCE
The claimants' evidence
The Secretary of State's evidence
Asylum claims in detention
Decisions to detain
Legal aid, substantive interview, and flexibility
Rule 35 reports
"[I]n my own experience and that of my colleagues working alongside me in the immigration removal centres, there has been an increase in detainees requesting [Rule 35(3)] appointments after they have been resident at the centre a while. These are individuals who did not disclose a torture allegation during their initial health check for whatever reason, but who may have become aware of the [Rule 35] process at a later date. The GP team has also noted an increase in [Rule 35(3)] appointment requests as a result of detainees stating they have been advised by their legal representatives to "get a rule 35 done"… Again, in our experience there is a high volume of detainees who state at their [Rule 35(3)] assessments that they "do not really know what the [Rule 35] is" and they have been advised by legal reps to "get an appointment as soon as possible… it will help my case". Once the GPs have explained the process and purpose of a [Rule 35(3)] and examined the individual, there are occasions where a [Rule 35(3)] is not completed as the GP concludes it is not actually required as there is no evidence of torture having taken place."
V GROUNDS OF CHALLENGE
DII as an unlawful process having regard to R (JM)
Fairness not explicitly stated in policy
Inherent unfairness in the DII: the generic challenge
"27 I would accept Mr Eadie's summary of the general principles that can be derived from these authorities: (i) in considering whether a system is fair, one must look at the full run of cases that go through the system; (ii) a successful challenge to a system on grounds of unfairness must show more than the possibility of aberrant decisions and unfairness in individual cases; (iii) a system will only be unlawful on grounds of unfairness if the unfairness is inherent in the system itself; (iv) the threshold of showing unfairness is a high one; (v) the core question is whether the system has the capacity to react appropriately to ensure fairness (in particular where the challenge is directed to the tightness of time limits, whether there is sufficient flexibility in the system to avoid unfairness); and (vi) whether the irreducible minimum of fairness is respected by the system and therefore lawful is ultimately a matter for the courts. I would enter a note of caution in relation to (iv). I accept that in most contexts the threshold of showing inherent unfairness is a high one. But this should not be taken to dilute the importance of the principle that only the highest standards of fairness will suffice in the context of asylum appeals."
"129 There is no doubt that, in the two cases in which permission to proceed has been obtained (Ms Edwards and Ms Cole), it has been granted on the basis that, at the substantive hearing, the Claimants' general claims are in play. However, as I stressed at the hearing, this is not a public inquiry into the way in which the Council handles homeless applications. Such an inquiry is not the function of this court: there are more appropriate fora in which such inquiries into alleged maladministration can be made, e.g. the appointment of an inspector to report on an authority's compliance with its obligation to secure improvement in the way its functions are exercised, "having regard to the combination of economy, efficiency and effectiveness (under section 10 of the Local Government Act 1999 ), or an investigation by the ombudsman into "an alleged or apparent failure in service which it was the authority's function to provide" or "an alleged or apparent failure to provide such a service" (under section 26(1) of the Local Government Act 1974 )."
Breach of public sector equality duty
The test cases
Conclusion on the test cases