R Detention Action v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Beatson,Lord Justice Floyd,Lord Justice Fulford
Judgment Date16 December 2014
Neutral Citation[2014] EWCA Civ 1634
Docket NumberCase No: C4/2014/2638
CourtCourt of Appeal (Civil Division)
Date16 December 2014

[2014] EWCA Civ 1634




The Hon. Mr Justice Ouseley

[2014] EWHC 2245 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Beatson

Lord Justice Floyd


Lord Justice Fulford

Case No: C4/2014/2638

The Queen on the application of Detention Action
Secretary of State for the Home Department

Nathalie Lieven QC and Charlotte Kilroy (instructed by Migrants Law Project, Islington Law Centre) for the Appellant

Cathryn McGahey (instructed by The Treasury Solicitor) for the Respondent

Hearing date: 30 October 2014

Lord Justice Beatson

I. Introduction


This appeal concerns a challenge to the Secretary of State for the Home Department's policy, practice and procedure in respect of the detention of applicants for asylum in the fast-track system ("the DFT process") after the refusal of asylum by the Secretary of State and pending an appeal against that decision. The DFT process is designed to facilitate the expeditious determination of applications for asylum and of appeals. It involves the detention of all applicants for asylum whose claims the Secretary of State considers can be determined quickly and a tight timetable for decisions on applications and appeals against a refusal of asylum to the First Tier Tribunal and the Upper Tribunal. Those who meet what I describe as the "quick processing criteria" in the Secretary of State's Detained Fast-Track Processes Guidance (the " DFT Guidance") are detained even if they do not meet the more stringent general detention criteria in her Enforcement Instructions and Guidance ("EIG"). The "general detention criteria" require all reasonable alternatives to be considered before detention is authorised and focus, for example, on whether a person poses a risk of absconding.


In these proceedings, Detention Action, a charity set up in 1993 to support individuals in immigration detention and to campaign on matters relevant to immigration detention, challenged a number of aspects of the DFT process. Before Ouseley J, its challenge was partially successful. The judge held that the way the Secretary of State operated the DFT process in the period until she determines an application for asylum was unlawful. He concluded that the very tight timetable created an unacceptably high risk of unfairness for those who are or may be vulnerable applicants who did not have access to lawyers sufficiently soon after detention in the DFT to enable advice to be given to them before their substantive asylum interview. His order dated 25 July 2014 reflects his decisions in two judgments, "the main judgment" ( [2014] EWHC 2245 (Admin)), handed down on 9 July, and "the relief judgment" ( [2014] EWHC 2525 (Admin)), handed down on 25 July after oral and written submissions on relief and ancillary matters. Unless otherwise indicated, my references to Ouseley J's judgment are to his "main" judgment.


There are two matters on which Detention Action's challenge did not succeed and on which it appealed against the judge's order. The first matter (appeal grounds 1 and 2) concerned relief. Detention Action sought an order requiring the Secretary of State to stop processing individuals in the DFT and not to remove individuals who had already been processed in the system from the jurisdiction before they had had a proper opportunity to seek legal advice, but the judge granted only declaratory relief. The second matter on which Detention Action did not succeed (appeal ground 3) was that the judge refused to rule on the legality of detention in the DFT system after the Secretary of State's decision refusing asylum and pending appeal against that decision.


Detention Action's appeal was heard by Longmore, Patten and Ryder LJJ on an expedited basis on 29 August. There was, however, only time for the court to consider the appeal against the refusal to grant prohibitory and mandatory relief. That was dismissed in a judgment handed down on 9 October: see [2014] EWCA Civ 1270. On the question of relief, it therefore suffices to record that the judge refused to make the prohibitory and mandatory orders sought by Detention Action in the light of evidence filed on behalf of the Secretary of State after the main judgment. In three statements, Mr Simm, who, at the material times, was the head of Asylum Detained Casework in the UK Visas and Immigration Directorate of the Home Office, stated that steps had been taken in the light of the main judgment to allow 4 clear working days between the allocation of a lawyer to those in the DFT process and their substantive interview. The judge stated these steps had the potential to remedy the unlawfulness he had found and made it clear that he expected applicants in the DFT process to have 4 clear days between allocation of a lawyer to them and their interview without any formal order.


The adjourned appeal concerning detention in the DFT process pending an appeal against the Secretary of State's decision to refuse asylum now comes before a differently constituted court. There were, at the time of the judge's decision, well over 2,000 appeals a year in the DFT of which an estimated 6% were removed from the process by the Tribunal: see [2014] EWHC 2245 (Admin) at [78] and [187]. Detention Action's case is that the Secretary of State's practice of applying the quick processing criteria and detaining individuals in the DFT system pending their appeal rather than only detaining those who meet the general detention criteria is unlawful for three reasons. The first is that the practice is in breach of the Secretary of State's own policy. The second is that, whether or not the practice is in breach of her policy, it is unlawful because the policy is insufficiently certain and transparent. The third is that the policy is unlawful because there is no lawful justification for it.


The judge (at [79] – [80]) gave two interrelated reasons for his refusal to rule on the legality of detention in the DFT system after the decision refusing asylum and pending appeal to the tribunal. He considered that an attack on the lack of detailed justification of detention in the DFT process pending appeal was not (or was not clearly) the basis of the challenge in Detention Action's grounds of claim. He also considered that the evidence filed in support of the Secretary of State's case did not provide any separate rationale for including the appeal stage in the DFT and detaining all those in it, rather than only detaining those who met the general detention criteria. The judge stated that the complaint about the lack of detailed justification for detention pending appeal was only made "rather more explicit" in Detention Action's skeleton argument. Until then, the Secretary of State may have reasonably thought that the policy justification for the inclusion of the appeals process in the DFT was not controversial, that by 2008 the policy of detaining at that stage by reference to the DFT criteria was also clear and not controversial in law, and that this may have explained the state of the evidence.


Ms Lieven QC, on behalf of Detention Action, criticised the judge's refusal to rule on this matter. She stated in §9(4) of her skeleton argument and in her oral submissions that it was clear from §65 of the detailed grounds that the inclusion of the appeals stage in the DFT process was challenged. Ms Lieven also submitted that the reason the evidence did not include a separate justification for the inclusion of a DFT appeals process was that the Secretary of State did not consider any separate justification was needed. But she and Ms McGahey, on behalf of the Secretary of State, agreed that the focus at the hearing and of our decision should be the question of substance. That question is whether the Secretary of State's practice complies with her policy and, whether or not it does so, whether it is lawful. Accordingly, it is not necessary for me to decide whether the judge was right not to rule on the point and to give the Secretary of State an opportunity to file evidence justifying detention at a later stage.


The evidential position has changed since the two judgments below. On 27 August 2014, shortly before the hearing before this court on 29 August, further evidence on behalf of the Secretary of State, in the form of Mr Simm's seventh witness statement, was filed. On 31 October 2014, the day after the hearing before us, a statement of Daniel Smith, who has been Head of the Detained Fast Track in the Home Office's UK Visa and Immigration Directorate since 1 September 2014, was filed. Mr Smith deals with a specific matter which arose during the hearing, and I refer to it at [89] below.


Mr Simm's seventh statement mostly deals with questions relevant to the dispute about what relief should be ordered. It sets out the action taken by the Secretary of State to address the insufficiencies in the process identified by the judge. It addresses the position of detention in the fast-track process pending appeal in three paragraphs which I consider at [75] ff. below.


The remainder of this judgment is divided into five sections. Section II ([11] – [22]) summarises the legislative background and the approach taken by the courts. Section III ([23] – [26]) and Section IV ([27] – [41]) deal respectively with the relevant ministerial statements and policy guidance about the DFT process. What the judge stated about detention pending appeal is summarised in Section V ([42] – [46]). Section VI contains my analysis of the submissions...

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