Detention Action v Secretary of State for the Home Department Equality Human Rights Commission (Intervener)

JurisdictionEngland & Wales
JudgeMr Justice Ouseley
Judgment Date09 July 2014
Neutral Citation[2014] EWHC 2245 (Admin)
Docket NumberCase No: CO/6966/2013
CourtQueen's Bench Division (Administrative Court)
Date09 July 2014

[2014] EWHC 2245 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Ouseley

Case No: CO/6966/2013

Between:
Detention Action
Claimant
and
Secretary of State for the Home Department
Defendant
Equality Human Rights Commission
Intervener

Ms N Lieven QC and Ms C Kilroy (instructed by Sonal Ghelani, Islington Law Centre) for the Claimant

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: 17 th, 18 th, and 20 th December 2013

Mr Justice Ouseley
1

Detention Action is an incorporated charity set up in 1993 to support individuals in immigration detention, and to campaign on issues relevant to immigration detention generally. In this action, it challenges the lawfulness of the policy and practice applied by the Secretary of State for the Home Department, SSHD, in the operation of what is known as the Detained Fast Track, DFT. This is the policy for the detention of some asylum seekers, while their asylum claims are determined first by the SSHD, and then while they appeal if the claim is refused. They are detained on the basis that their claim and any appeal can be determined quickly. In summary, Detention Action contends that the DFT system as now operated is so unfair as to be unlawful, and it is unlawful at both common law and as a breach of Article 5 (1)(f) ECHR. This is a general claim, and not one which relates directly to any specific detainee. There is no individual Claimant.

2

The Equality and Human Rights Commission, EHRC, intervened with permission both by written and oral submissions. Detention Action is not a "victim" for the purposes of s7 Human Rights Act 1998, but the EHRC may rely on any ECHR rights in any legal proceedings by virtue of s30(3) Equality Act 2006. It supported the submissions of Detention Action, and added submissions on Articles 3 and 5, and Articles 13 and 14, principally the latter, the protection against non-discrimination in the exercise of Convention rights. A possible failure to comply with the public sector equality duty in s149 of the Equality Act 2010 was fleetingly raised. That, in my judgment, has to be pursued, if pursued at all, in a formal claim. It did not add anything of substance to the Article 14 arguments here.

3

Ms McGahey for the SSHD submitted that although there might be individual occasions when the DFT was operated unlawfully, contrary to its terms, the Court should be very cautious before making any general findings that the system was unlawful, generalising from individual case histories and anecdotal evidence.

4

This claim is concerned with those whose claims are thought by the SSHD to be capable of quick determination and who are therefore detained for the purpose of processing the claim and any appeal swiftly; their numbers include some in respect of whom bail or temporary admission would probably be refused anyway on other grounds; that should in law and by policy, but may not always in practice, be stated on the form giving reasons for detention.

5

This claim is not concerned with those, sometimes still called asylum seekers, whose claims have failed, who have no further appeal rights or other rights to remain, and are detained pending removal. Nor is this case concerned with those who are detained, while their claim is considered, because of the risk that they would abscond or commit offences, or that they would fail to comply with conditions attached to their admission or liberty. I am not concerned either with those who are detained in the Detained Non-Suspensory Appeals, DNSA, part of the DFT after the adverse decision is made, since the question of detention pending appeal cannot arise as they have no right of appeal in-country.

The statutory provisions

6

I start with the statutory basis for the detention of asylum seekers. This is in paragraph 16 of Part 1 of Schedule 2 to the Immigration Act 1971, but this power is not peculiar to asylum seekers; it applies to those whom immigration officers may examine, by virtue of paragraph 2 of that Schedule, to see if they have or should be given or refused leave to enter. Paragraph 16 provides:

"(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."

7

That aspect of the statutory framework is set out more fully in paragraphs 8–9 of the speech of Lord Slynn in R (Saadi) v SSHD [2002] UKHL 41, [2002] 1WLR 3131, a case to which the parties made extensive reference as the primary decision on the lawfulness of the DFT as it then was operated. I note that, under paragraph 21 of Schedule 2 to the 1971 Act, a person liable to be detained can be granted temporary admission, and that an application for bail can be made by such a person seven days after arrival; paragraph 22 of Schedule 2.

8

There is no separate statutory provision which deals with the detention of those whose application for leave to enter or whose asylum claims have been refused but who are appealing against that adverse decision. The structure of Schedule 2, which governs detention, shows that paragraph 16 also covers detention pending appeal. Paragraph 29 of Part 2 to Schedule 2 to the 1971 Act deals with bail pending appeal. The Asylum and Immigration Tribunal (Fast Track Procedure) Rules SI 2005 No. 560 apply only to those who were in immigration detention under Schedule 2 when served with notice of the decisions being appealed and who have been continuously in detention since.

9

There is also a European Union aspect to the statutory framework. Article 18 of Council Directive 2005/85/EC, the Procedures Directive on minimum standards for granting refugee status, prohibits detention on the sole ground that a person is an applicant for asylum, and it requires that an applicant in detention must be able to have that detention speedily reviewed. Article 23 covers examination procedures at first instance, here the SSHD decision. It permits an accelerated procedure, provided that the basic principles and guarantees in chapter II are adhered to. It does not require the exclusion from such a process of those with "special needs" or those whose claim is likely to be well-founded. Article 23 (3), expressed in general terms, is additional to the more specific but nonetheless still wide range of circumstances in which an accelerated procedure may also be provided. Ms Harrison QC is right that "mere administrative convenience" is not one of those bases, nor is there an express or implied assumption that all claims are fit for accelerated examination. Nonetheless, I see nothing either to suggest that the DFT in principle falls foul of any Directive provision, nor is that a point more than hinted at by Ms Harrison. It was not a point in the claim. Nor do the exclusions expressly list any of those categories which the EHRC says should be excluded from the DFT, any of which may involve the circumstances which explicitly do permit accelerated procedures to be applied. Article 39 does require the existence of an effective remedy before a Tribunal against an adverse decision.

10

The 2003 Council Directive 2003/9/EC, setting minimum standards for the reception of asylum applicants, the Reception Directive, defines detention in Article 2(k) as "confinement …within a particular place, where the applicant is deprived of his or her freedom of movement".

11

Article 7 is headed "Residence and freedom of movement". It provides:

"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."

12

Article 14 provides for "Modalities for material reception conditions". Article 14(8) provides for an exception to the general modalities, which cover different forms of housing, where provided in kind:

"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."

13

It was the SSHD's contention, opposed by the EHRC, that Article 7 did not apply to detention as defined in Article 2(k), but applied...

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