United Kingdom - The Queen on the application of Detention Action v Secretary of State for the Home Department, [2014] EWCA Civ 1634

Facts:

This case entailed a challenge by UK charity Detention Action to the Secretary of State’s policy, practice and procedure under the Detained Fast Track system (DFT). Under this system, anyone who has applied for asylum in the UK can have their application fast-tracked. This can be done because the asylum seeker’s case is not considered to be complex and can be dealt with summarily, in order to free up more time and resources to dedicate to the more complex cases. A decision to fast-track can be made if the person comes from a specific country, such as Ghana or Nigeria, or on the basis of an initial screening interview. During the time it takes to process the application and issue a decision (on average two weeks), the asylum seeker is detained.

The charity brought an action before the High Court seeking for these practices to be halted. Ouseley J found partially in their favour, holding that the system as it was operating created an unacceptably high risk of unfairness. The Court ordered the Secretary of State to make changes to the system, including greater availability of legal advice and more time to build a case.

However the High Court omitted to rule on another issue; that of detention pending appeal. The High Court had refused to rule on this matter as this issue only cropped up in Detention Action’s skeleton argument and did not form the basis of their action. Detention Action argued that the High Court should have addressed this issue, and therefore asked the Court of Appeal to.

The two questions put before the Court of Appeal were therefore whether the practice of applying the DFT criteria at the appeal stage was a breach of the relevant policy statements and documents concerning the DFT process, and, if it was not, whether the policy was lawful. 

Decision & reasoning:

The Court of Appeal (with Lord Beatson delivering judgment and Lords Floyd and Fulford concurring) began by stating that it was not necessary for it to rule whether the High Court judge was right in refusing to deliver judgment on this issue, as both Detention Action and the Secretary of State agreed that the appeal should proceed and should direct its focus on the substance.

The first task of the Court was to determine whether there had been a change in the detention criteria applied by the Secretary of State. Originally, the DFT criteria for detention had not applied to the appeal stage. If the Secretary of State wanted to detain someone at the appeal stage, the “usual” detention criteria had to be complied with. These criteria are not based on country of origin or the complexity of the case, but on the likelihood of the applicant absconding, his or her physical and mental health, and the risk of the person offending.

However it became clear that, since 2008, a change had occurred and DFT standards were now being applied to the appeal stage. This meant that a lot more people were being detained pending appeal, even if they did not need to be. This change manifested itself mainly in the text of the DFT Guidance, although the wording of the Guidance was far from clear. The Court interpreted the word ‘decision’ as meaning both the initial decision and the outcome of the appeal, meaning that the DFT was one single fast track encompassing the appeal stage. The Court therefore found that detention at the appeal stage was taking place under DFT criteria. The High Court had come to the same outcome.

The Court then moved on to the second point of discussion; whether the practice of detention pending appeal fulfilled the requirements of clarity and transparency (as required by the Lumba case, in which the Court stated in relation to detention that “the rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised”). Although a practice may be permitted by a policy document, this in itself does not mean that it is clear and transparent; where personal liberty is at issue, such a policy statement must be defined sufficiently clearly so that individuals know the criteria being used to detain them.

The Court cited a statement made by the Head of Asylum Policy in the Home Office to the European Commission in 2013 in which he said “it is not entirely clear that the DFT process includes a fast-track appeal process”. Lord Beatson noted that if a senior official was unaware of DFT appeal procedures, then it is rather unlikely that an ordinary citizen would. No explicit statement had ever been made to make it clear that, where DFT criteria continue to be met, post-decision detention is within DFT policy. Also, the only mention of a DFT appeal in the Guidance were found in the sections dealing with timescales and travel documentation for removal, with no further explanation. Lord Beatson admitted that he found the determination of this question less than easy. However given the ‘elusive’ nature of the wording of the Guidance and the confusion as expressed by the Head of Asylum Policy, the practice of post-decision detention under DFT criteria could not be classed as being clear and transparent.

Given the fact that the policy was neither clear nor transparent, there was no duty for the Court to rule on possible justification. However Lord Beatson decided to do so anyway given the lengthy debate on justifications that took place at the oral stage. The Court stated that any justification to detention has to be backed up by sufficiently compelling evidence, given the importance of the right to liberty.

The main justification put forward by the Secretary of State was the need to speedily and effectively deal with asylum claims to facilitate the entry into the United Kingdom of those who are entitled to do so, and the removal from the United Kingdom of those who are not. This was in light of the fact that there are around 2,000 appeals per annum. Detention is needed to ensure the on-the-spot availability of the applicant, especially given the tight schedule of the interviews. When asked whether alternative arrangements could be organised, such as a similar facility that does not detain the applicant, counsel for the Secretary merely stated that this solution would not offer the same level of ‘common sense continuity’ as achieved by DFT detention.

The Court concluded that, had it been necessary to rule on this point, it would have rejected these justifications. This was mainly because the appeal stage is of a wholly different nature to the initial decision-making stage. Although such justifications were acceptable in previous cases dealing with the initial decision-making stage (Saadi’s case), they cannot be applied by analogy to the appeal stage. Where an initial decision is being made under the DFT, the need for the applicant to be present for interviews is understandable, given the tight timetables and the need for efficiency. However this justification cannot hold weight at the appeal stage. Many appeals take place in the absence of the applicant, and the Home Office does not conduct interviews when awaiting an appeal. The Court also declined to accept the Secretary of State’s justification that the appeals procedure would be harmed if the applicant were not in detention, as no evidence to this effect had been produced. Similarly, no evidence had been proffered to back up the assertion that it would be impossible to house the applicant in a centre nearby. Given this lack of evidence, the justification could not be accepted.

Therefore, although detention under DFT criteria at the appeal stage was permissible in principle and did not breach DFT guidance, it did not satisfy the requirements of clarity and transparency. Had it been necessary to determine whether the practice could be justified, the Court would have ruled it to be unjustified due to a lack of evidence.

Outcome:

Appeal granted. The Court of Appeal required the High Court to amend its order to address outcome of the appeal

Subsequent proceedings:

Following the conclusion of this case, DFT detention at the appeal stage continued to operate. Detention Action took another action to the High Court seeking for the practice in its entirety to be quashed (Detention Action v First-Tier Tribunal (Immigration and Asylum Chamber) and Upper Tribunal (Immigration and Asylum Chamber) and Lord Chancellor [2015] EWC 1689 (12 June 2015)). The action was successful. Justice Nicol held that the practice was ultra vires, finding that it did not meet the requirements of fairness and justice.

On 2 July 2015, the DFT system was suspended by Minister for Immigration James Brokenshire.

Observations/comments:

The main element that turned this case from its counterparts was the fact that it addressed appeal proceedings, not the initial decision-making procedure. Lord Beatson refused to accept that the factual make-up of both procedures was the same and that an analogy could be drawn.

The Court’s discussion on justifications is welcome as, although not applicable in this case, it gives guidance as to what the Court will accept as a justification in the future. The Court will clearly only authorise detention if it is required to conduct interviews under a tight schedule, and not if it serves as a mere convenience.

The string of cases dealing with the DFT and its eventual suspension should serve as a warning to other countries seeking to implement a similar system. 

The case has been commented on by Alison Harvey, Legal Director of Immigration Law Practitioners’ Association, on EDALs blog here.

Other sources:

2005 Tribunal Fast Track Rules; Enforcement Instructions and Guidance; Detained Fast-Track Processes Guidance; DFT & DNSA – Intake Selection (AIU Instruction); Operational Enforcement Manual; Enforcement Instructions and Guidance 

This case summary was written by Joanna Gilbert, law graduate of University College Cork, Ireland and a graduate of LLM European Law from Leiden University.