The Queen (on the Application of Detention Action) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice Patten,Lord Justice Ryder |
| Judgment Date | 09 October 2014 |
| Neutral Citation | [2014] EWCA Civ 1270 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2014/2638 |
| Date | 09 October 2014 |
[2014] EWCA Civ 1270
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
THE HONOURABLE MR JUSTICE OUSELEY
Royal Courts of Justice
Strand, London, WC2A 2LL
THE RIGHT HONOURABLE Lord Justice Longmore
THE RIGHT HONOURABLE Lord Justice Patten
and
THE RIGHT HONOURABLE Lord Justice Ryder
Case No: C4/2014/2638
Ms Nathalie Lieven QC & Ms Charlotte Kilroy (instructed by Sonal Ghelani, Islington Law Centre) for the Appellant
Miss Cathryn McGahey (instructed by The Treasury Solicitor) for the Respondent
Hearing dates: 29 th August 2014
The Detained Fast Track ("DFT") system introduced in 2000, in relation to applicants for asylum, continues to raise problems both for policy makers and for the courts, since the Secretary of State for the Home Department's policies change from time to time as do the methods by which the system is operated. It has always been intended to apply only to straightforward claims but the method by which it is assessed whether a claim is straightforward and the consequences of that assessment have varied over the years.
In R (Saadi and Ors) v SSHD [2002] UKHL 41, [2002] 1 WLR 3131 and Saadi v UK (2008) 47 EHRR 17 the system by which applicants were detained at Oakington Reception Centre to facilitate expeditious determination of their asylum applications was upheld as being proportionate and reasonable. Essentially the system provided for a period of 3 days between arrival and substantive interview, 2 further days to decision allowing time for further representations, on-site legal advice, a relaxed and spacious regime with detention averaging 7–10 days. The House of Lords' decision was followed by this court in R (L and Anr) v SSHD [2003] EWCA Civ 25, [2003] 1 WLR 1230 where it was held that there was no reason why the fast track procedure should not afford adequate opportunity for asylum applicants to demonstrate that they had a case, although it was recognised that there might be cases where for example, medical evidence was required which could not be fairly dealt with in the compressed timetable within which decisions were to be taken.
A somewhat different scheme in operation at Harmondsworth Removal Centre (limited to single males from countries where there was in general no serious risk of persecution) was considered by this court in R (Refugee Legal Centre) v SSHD [2004] EWCA Civ 1481, [2005] 1 WLR 2219. There was a screening process to determine suitability; a solicitor was provided who would usually have a morning in which to interview the client and the interview would take place in the afternoon. A decision would be taken the day after the interview; a right of appeal could be exercised within 2 days and, if exercised, the appeal would be heard on the next day with a tribunal decision shortly thereafter. This court held that, if a whole system (rather than an individual case) was under challenge, the question for the court was whether there was an unacceptable risk of claims being processed unfairly; an unacceptable risk had to be more than the risk of a wrong decision and had to inhere in the system itself, in respect of which there had to be an "irreducible minimum of due process". The question was then whether a decision making process compressed into 3 days failed to pass that test. This court held that it did pass that test provided that there was sufficient flexibility to ensure that the three day timetable was a "guide and not a straitjacket" (para 23). Since the Home Office accepted that there should be that flexibility, this court held that the judge was correct to have refused relief.
Now for the first time it has been held that the system (as currently operated) does operate unfairly and thus unlawfully but only in a specifically limited way. Despite expressing concerns about the screening process and the way in which the system applied to vulnerable groups such as the victims of torture or trafficking, Ouseley J's only finding of an unacceptable risk of claims being processed unfairly was that (para 196):-
"… in too high a proportion of cases and in particular for those which might be sensitive, the conscientious lawyer does not have time to do properly what might need doing."
On being told at the subsequent relief hearing on 17 th July this year that the Secretary of State had now arranged that those who entered the DFT before 14 th July would, on request, be allowed sufficient time (namely 4 days) between the allocation of a lawyer and their substantive interview, he decided on 25 th July that he would make no order other than a declaration that:-
"… as at 9 th July 2014 the manner in which the DFT was being operated, as set out in the judgment, created an unacceptable risk of unfair determinations for those vulnerable or potentially vulnerable applicants, referred to in paragraphs 114, 198 and 221 of the judgment, who did not have access to lawyers sufficiently soon after induction to enable instructions to be taken and advice to be given before the substantive interview and was to that extent being operated unlawfully."
This is an expedited appeal against Ouseley J's refusal to make any further order.
The further orders which the claimant asked the judge to make were as follows:-
i) The defendant be prohibited from processing asylum and human rights claims in DFT until she has taken the necessary steps to remove the unacceptable risk of unfairness identified in the judgment, those steps to include at least a period of consultation with key firms with exclusive contracts to represent individuals processed in DFT, the First Tier Tribunal and the Legal Aid Agency;
ii) The defendant consent to orders under Rule 30 of the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 that parts 2 and 3 of those Rules no longer apply to the appeals of those in detention in the places specified at Schedule 2 to those Rules; and
iii) The defendant be prohibited from removing from the jurisdiction those whose claims have been processed in DFT until they have had the opportunity of seeking legal advice on the impact of this ruling on their asylum and human rights claims.
The main submission
The main submission made by Ms Lieven QC, for the appellant action group Detention Action, was that once the judge had decided that the manner in which the DFT was being operated created an unacceptable risk of unfair determinations and was to that extent being operated unlawfully, the judge had no discretion to exercise but was bound to make the orders asked for and bring the whole DFT operation to a halt until it was operating lawfully. She submitted that the judge had not understood how serious his judgment was and she reminded us of the dicta of Lord Dyson JSC in R (WL (Congo)) v SSHD [2011] UKSC 12, [2012] 1 AC 245 at paras 65–68 that, once it was shown that a particular applicant had been detained, the burden was on the Secretary of State to justify that detention as being authorised by law; a system which was operating unlawfully could not constitute such justification. The logical consequence of this would, I suppose, be that all detainees in the DFT system should now be immediately released, unless their detention could be justified on other common law grounds such as the risk of absconding or the risk of committing criminal offences. It is perhaps noteworthy that even the orders asked for by Ms Lieven do not expressly go as far as that.
I would reject this general wide-ranging submission. It is a commonplace of judicial review that the court has a wide discretion when it comes to remedy, see Wade and Forsyth, Administrative Law 10 th ed. (2009) pages 599–602. Of course, a court cannot view continuing unlawfulness with equanimity and, if the Secretary of State was ignoring the court's judgment, no doubt some such relief as Ms Lieven proposes would be appropriate. But the judge was entitled to take into account that the Secretary of State was actively addressing the unlawfulness disclosed in the judgment by ensuring that applicants were given four days within which to consult their lawyers and reconsidering the cases of those who had not been given such time in the past.
As the judge pointed out the form of...
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