Detention Action v Secretary of State for the Home Department  EWHC 2245 (Admin) (9 July 2014)
The UK High Court has found that the Detainee Fast Track system for detaining asylum seekers is unlawful because the system carried “an unacceptable risk of unfairness” primarily due to the unjustifiable delay in allocating lawyers to asylum seekers.
The civil society organization Detention Action (DA) brought the action in the UK High Court against the Secretary of State for the Home Department (SSHD). DA argued that the Detainee Fast Track system (DFT) which detains certain claimants for asylum with the aim of speedily administering their claims, was so unfair as to be unlawful. DA argued that the DFT was unlawful at common law and under the European Convention on Human Rights (ECHR).
DA brought the action against the SSHD as a general claim, not relating to any specific detainee or individual claimant. The UK Equality and Human Rights Commission intervened with permission, in support of DA’s claims and adding submissions in relation to the ECHR.
Background to the DFT
In 2000, in response to a sudden and administratively overwhelming influx of applications for asylum, the SSHD introduced the DFT through new policies and rules under existing immigration and human rights legislation. The DFT’s rationale was to rapidly process straightforward applications that were determined unlikely to succeed, in order to clear administrative resources for more complex cases and shorten periods of uncertainty for applicants. The SSHD aimed to conduct 150 interviews per day according to a tight schedule.
Detention was proposed as necessary to reduce time required to process applicants, and not due to an applicant’s likelihood of absconding or the mere fact of the applicant’s seeking of asylum (which would breach the ECHR).
The DFT operated by detaining certain applicants for up to 10 days in “reasonable conditions” in a low-security facility until the applications were processed. These conditions included on-site legal advice, detention at a centre which offered a “more relaxed and spacious regime than at other detention centres”, average detention periods of 7-10 days, time in the schedule for initial and further representations on behalf of detainees and exclusions for unaccompanied minors, pregnant women and individuals traumatized by torture or sex trafficking.
Prior rulings on DFT lawfulness
The lawfulness of the DFT had been considered by the House of Lords in R (Saadi and Others) v SSHD  1 WLR 3131 and the European Court of Human Rights in Saadi v UK (2008) 47 EHRR 17. The DFT system’s lawfulness had also been queried in R (Refugee Legal Centre) v SSHD  EWCA Civ 1481.
In each case, the DFT was declared to be lawful. However since these decisions, the circumstances surrounding, policies guiding, and conditions of detention under the DFT have changed. On these bases, DA brought the current action.
DA submitted that by creating an “unacceptable risk of unfairness for asylum seekers” the DFT system as operated, imposed detention which was “unreasonable, arbitrary and disproportionate” and therefore unlawful. Of particular relevance was the extent of changes in conditions, policy and circumstances since 2000. In short, these were:
- A considerable reduction in asylum seeker claims since DFT was introduced meant that circumstances no longer warranted the DFT.
- Conditions of detention had become harsher with the closing of the low-security Oaklands facility that held detainees under the DFT’s earlier incarnation. Security was also higher than the acceptable limit for this purpose, as set by the House of Lords in Saadi.
- Clear guidelines as to whom to exclude from the DFT were lacking.
- Detainees under DFT included more cases which had previously been considered too complex for a quick decision, such as those involving torture, rape, female genital mutilation (FGM) and homosexuality.
- The screening process was incapable of making proper identification of suitable detainees for the DFT.
- DFT was operated with little flexibility and with inadequate safeguards such as judicial review or scope to take cases out of the DFT.
- Legal representation was allocated to asylum seekers too late within a short timeframe to allow for adequate preparation of a claim. Legal representatives did not have sufficient time to take questions and gather supporting evidence.
- No safeguards were offered by the appeal process.
The SSHD argued for the continuing application of the principles laid down in earlier decisions on the DFT by the House of Lords and ECHR in Saadi and by the Court of Appeal in Refugee Legal Centre. The SSHD also argued that individual instances of shortcomings in the system did not indicate its general unlawfulness.
The decision commenced with findings of numerous deficiencies in the DFT, but each was insufficient to render the entire system unlawful. These included:
- Although facts and circumstances of detention had changed since Saadi, this did not provide a sufficient basis for unlawfulness;
- Changes to policy were identified, but deemed “not so obviously unlawful that no reasoning could save it”;
- A longer duration of detention was not so “disproportionate or excessive, so as to be unlawful”;
- Expanded criteria for entry to the DFT were found to be not necessarily arbitrary;
- Flaws in the screening process that could bring unfair results were tempered by auditing processes and the provision of legal representation, and were not sufficient to make the DFT unlawful;
- The ‘controversial’ inclusion of vulnerable categories in the DFT - such as exposure to torture, trafficking, rape, FGM and domestic violence, or women in the second and third trimesters of pregnancy and people with learning difficulties and/or mental health problems - also did not necessarily make the system unlawful, even though safeguards were lacking.
- Conditions of detention had deteriorated but did not make detention under the DFT unlawful.
Although these shortcomings were insufficient for unlawfulness alone, they provided context to the significance of the combined issues of ‘timetables, flexibility and legal representation’. Mr Justice Ounsley held that the operation of the DFT, with its deficiencies and short timeframes, “puts a premium for the fairness of the quick process on the availability of legal advice and representation early rather than late.”
In particular, the “unjustifiable delay” in providing applicants with legal representation once detained, gave lawyers insufficient time prior to substantive interview to advise and prepare claims, seek referrals where appropriate and gather evidence. This therefore carried an “unacceptably high risk of unfairness but one which… can be removed by the earlier instruction of lawyers.”
His Honour observed that by attending to this crucial deficiency, other problems would be addressed. The SSHD may choose to provide more interview rooms or change the LAA system. Effective legal representation would also improve the screening process by providing greater capacity for the system to remove vulnerable cases from DFT. Earlier instruction of lawyers was an obvious solution but not the only approach available to the SSHD, which could alternatively choose to improve the screening process, establish effective safeguards in the rules or allow more time for building a case.
In summary, the High Court did not find unlawfulness in the DFT policy’s terms, against statutory provisions, or in breach of the ECHR. However the DFT operated unlawfully because it carried an acceptable risk of unfairness to vulnerable applicants by delaying access to legal representation.
Successive Australian Governments have increasingly used “screening” processes to screen out and return Sri Lankan asylum seekers arriving in Australia by boat. Under the screening process, asylum seekers are interviewed with no legal advice, no transparency and no right to appeal the decision to screen them out and return them to their country of origin.
As in the UK, the justification given for this process is to expedite the processing of certain claims. But also as in the UK, such a truncated process can deny fairness to the asylum seeker and increase the risk of people with genuine protection claims being wrongfully returned to harm.
For more information on screening in the Australian context, see: http://hrlc.org.au/screening-out-risks-returning-genuine-refugees-to-persecution/
The full decision can be found here.
Jane Doyle is a volunteer at the Human Rights Law Centre.