Hossain and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 07 June 2016 |
| Neutral Citation | [2016] EWHC 1331 (Admin) |
| Docket Number | Case No: CO/5275/2015, CO/4046/2015, CO/5615/2015, CO/4572/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 June 2016 |
[2016] EWHC 1331 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Cranston
Case No: CO/5275/2015, CO/4046/2015, CO/5615/2015, CO/4572/2015
Stephanie Harrison QC, Shu Shin Luh, Anthony Vaughan and Grainne Mellon (instructed by Duncan Lewis) for the 1st, 3rd and 4th Claimants
Stephanie Harrison QC and Shu Shin Luh (instructed by Wilson Solicitors LLP) for the 2 nd 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
Approved Judgment
Index:
| 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 | ||
| MNK | Paragraphs 62–74 | ||
| Zuberia Auleear | Paragraphs 75–86 | ||
| TCV | Paragraphs 87–92 | ||
| 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:
I INTRODUCTION
In broad terms this is a challenge to the lawfulness of the Secretary of State for the Home Department examining in some circumstances the asylum claims of persons in immigration detention. The challenge is advanced in two ways. It is a test case in that the cases of the four claimants were joined, as representative of similar claims by others challenging the unfairness of their asylum claims being examined and their being detained. Secondly, it is a "generic" challenge in that it is alleged that the process by which the Secretary of State examines the asylum claims of certain categories of persons while in detention is inherently unfair. Over one hundred cases raising similar issues have been stayed pending the decision in this case.
There is no need to canvass the troubled procedural history of this litigation in detail, or at this stage to attribute blame for what has proven to be a sorry state of affairs. Permission to apply for judicial review in Mr Hossain's case was granted on 17 November 2015 and the matter was listed for a substantive hearing. Following an application through their solicitors Duncan Lewis Solicitors and Wilson Solicitors LLP, another three cases were linked to Mr Hossain's case. While the challenge was to the lawfulness of what the Secretary of State was doing as a whole, some of the cases had individual features which were thought needed addressing. On 8 January 2016 the Secretary of State sought an order bringing forward the date of the hearing, which had been listed for 27 April 2016, on the basis that the issues set out in the linked cases needed to be dealt with expeditiously. On 4 February 2016 I granted that application and the matter was listed for hearing on 25 February 2016.
On 25 February 2016, what was supposed to be a two-day hearing began, but on the second day the Secretary of State indicated that she was not in a position to continue. Consequently, the hearing was adjourned and was listed to resume on 22 and 25 April 2016. In the meanwhile, the material to be grappled with multiplied, without in any way being rationalised. The Secretary of State produced hundreds of pages of witness evidence and a further skeleton argument, to which the claimants filed and served evidence and submissions in reply. The case was heard but there were further written submissions by the parties following that. Writing a judgment in these circumstances, when there are other pressing matters in the court, has not proved easy.
II THE SECRETARY OF STATE'S POLICIES
There is no need to refer to the Refugee Convention, EU or national law governing the right to claim asylum (or international protection) and how it takes practical shape in the Immigration Rules and Asylum Policy Instructions except for three aspects. One is that Article 4.1 of the EU 2011/95/EU Qualification Directive provides that Member States may consider it the duty of the applicant to submit as soon as possible all the elements needed to substantiate an application for international protection. Consistently with the Directive, Parliament has provided in section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 ("the 2004 Act") that a decision-maker, in determining whether to believe a statement made by or on behalf of a person making an asylum or human rights claim, must take account the failure to make the claim before being notified of an immigration decision (such as to remove the person) or before being arrested under an immigration provision, unless the person had no reasonable opportunity to do so.
The second is that under section 94 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") if the Secretary of State is satisfied that a person comes from a country listed as safe for her return, she must certify an asylum claim as clearly unfounded unless satisfied that it does not fall into that category: section 94(3). If a person's asylum claim is refused and certified there is no right of appeal in the UK, only abroad. These are so-called non-suspensive appeals.
Thirdly, no distinction is drawn between asylum-seekers and others in the various powers of immigration detention. Powers to detain persons who require leave to enter or remain in the UK but do not have it, pending a decision on whether to set removal directions, and pending the removal of persons pursuant to such directions, are contained in sections 10(1) and 10(9) of the Immigration and Asylum Act 1999, paragraph 16 of Schedule 2 to the Immigration Act 1971 and section 62 of the 2002 Act. These statutory powers are subject to limits under the European Convention on Human Rights ("ECHR") and the common law. A seminal case in common law is R v. Governor of Durham Prison ex p. Singh [1984] 1 WLR 704, limiting the period of immigration detention to what is reasonably necessary to achieve its purpose. Furthermore, public law error bearing on the exercise of this power also renders detention unlawful: R (on the application of Lumba) v. Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245.
Immigration detention
Chapter 55 of the EIG
The Secretary of State's policy of immigration detention is contained in her Enforcement Instructions and Guidance, Chapter 55 ("the EIG"). The policy states that the power to detain must be retained in the interests of maintaining effective immigration control, but that there is a presumption in favour of temporary admission or release and that, wherever possible, alternatives to detention are used: the EIG, paragraph 55.1.1. Paragraph 55.3 sets out principles as to when to detain: for the presumption in favour of temporary admission or temporary release not to apply, there must be strong grounds for believing that a person will not comply with conditions; all reasonable alternatives to detention must be considered; and each case must be considered on its merits. The non-exhaustive factors that the decision-maker takes into account in deciding whether to detain are set out at paragraph 55.3.1.
There are five reasons set out in Chapter 55 of the EIG for when detention may be appropriate: the person is likely to abscond if given temporary admission or release; there is insufficient reliable information to decide whether to grant temporary admission or release; removal from the UK is imminent; detention is needed whilst alternative arrangements are made for the person's care; and release is not considered conducive to the public good: paragraph 55.6.3 of the EIG. Under paragraph 55.8 of the EIG detention is reviewed at fixed intervals and continued detention must be authorised at certain levels of seniority. Reviews also take place when there is any potentially material development in the detainee's case, including the receipt of a Rule 35 report (explained shortly).
Importantly, paragraph 55.10 of the EIG identifies persons who are considered unsuitable for detention, except in only very exceptional circumstances. Among these are:
"Unaccompanied children and young persons under the age of 18…
The elderly…
Pregnant women…
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…"
The meaning of paragraph 55.10 has been considered in a number of cases. In R (on the application of Das) v. Secretary of State for the Home Department [2014] EWCA Civ 45; [2014] 1 WLR 3538, Beatson LJ emphasised that it provides broad guidance about how discretion is to be exercised and it should not be interpreted in the same way as a statute.
"Care must also be taken not to stray beyond interpretation into what is in substance policy formation by...
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