Detention Action v Secretary of State for the Home Department Equality and Human Rights Commission (Intervener)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 25 July 2014 |
| Neutral Citation | [2014] EWHC 2525 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6966/2013 |
| Date | 25 July 2014 |
and
[2014] EWHC 2525 (Admin)
Mr Justice Ouseley
Case No: CO/6966/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
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 and Human Rights Commission) for the Intervener
Hearing date: 17 th July 2014
This judgment gives the reasons for the Order which I now make following oral submissions on 17 th July, and written supplementaries, on relief and ancillary matters after the hand down of the main judgment on 9 July 2014.
I am satisfied that declaratory relief is necessary, and that this relief should refer to what is unlawful in the operation of the Detained Fast Track. A wider declaration that the operation of the DFT was unlawful would not properly reflect the more limited basis of the judgment.
I do not accept the Defendant's contention that the date as at which the unlawfulness should be found is 20 December 2013, the conclusion of the hearing. That might have been the appropriate date if the evidence now before me from Mr Simm, contested or not, showed that there might well have been a significant change in the operation of the DFT between hearing and judgment, whether directly related to the instruction of lawyers or through changes in other aspects which bore on the need for the early instruction of lawyers. But I am not persuaded that the 4 th to 6 th witness statements of Mr Simm show that there were significant or potentially significant changes between December 2013 and 9 July 2014. What his evidence shows is that, after judgment, the Defendant has taken and continues to take steps which have the potential to remedy the unlawfulness.
I make no other substantive Order on the relief sought by the Claimant. Its submissions revolved around what should happen to past, present and future DFT cases in the light of the judgment. The Claimant, with the support of the Intervener, sought a prohibition on the processing of any cases currently in the DFT, until such steps as might remedy the deficiency had been instituted, an order that the Defendant consent to the removal of all appeals from the DFT, and a prohibition on the removal from the UK of any person whose claim had been processed in the DFT, until that person had had the opportunity of seeking advice on the implications of the judgment for the claim to asylum or to stay on human rights grounds. The Claimant also sought a short period of suspension, three weeks or so, in the operation of the DFT while the various steps under urgent consideration or being implemented by the Defendant were consulted and decided upon, and then put into effect.
I am not prepared to make any further Orders in relation to the operation of the DFT. Mr Simm, in his 5 th statement, said that those awaiting interview or decision who entered the DFT before 14 July 2014 should be allowed, on request, sufficient time for the proper instruction of lawyers. I have assumed that the cut off of 14 th July was set because of the proposed system to allow 4 clear working days from allocation of lawyer to substantive interview. But, until the final changes are in place, the same leeway should be allowed to any one entering the DFT who does not benefit from the earlier allocation of lawyers so as to give 4 clear working days between allocation and interview. I expect that to happen without any formal order, and if it does not happen, an application can be made under the liberty to apply in the Order. I do not hold that that will inevitably make the process lawful, but it obviously reduces the degree of risk of unfairness. I do not see it as necessary for all those in the DFT awaiting a decision to be removed from it. A blanket approach that would remove from it many whose decisions were entirely fair, or who could...
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