Kpandang, R (on the application of) v Secretary of State for the Home Department

Detention under the Fast Track asylum process is not unlawful merely because the claimant has family or relationship ties in the United Kingdom. The court must identify the Secretary of State’s published policy and assess whether the detention falls within it.

Detention pending examination and decision may be lawful without an identified risk of absconding, provided the period is reasonable. A short period of detention to secure the speedy determination of straightforward asylum claims may be proportionate under article 8, even where detention separates the claimant from family members. Proportionality depends on the facts, including the claimant’s conduct, the practical need for detention, the conditions, and access to legal assistance and evidence.

The claimant, a Togolese national, sought judicial review of the decision to process his asylum claim through the Harmondsworth Fast Track procedure. He had a partner and child in the United Kingdom. His interview and decision-making were suspended by an interim order, and he was released.

The live issue was whether his detention from 30 March to 17 or 18 May 2004 was unlawful. He argued that detention breached the Secretary of State’s Fast Track policy and his rights under article 8 of the Convention. He also raised concerns about detention conditions, legal advice and obtaining evidence from family members.

1. The claim was dismissed. The order suspending the asylum interview and decision-making process was discharged so that the claimant’s asylum claim could proceed through the usual channels. There was no order as to costs, with publicly funded assessment ordered.
2. The published Fast Track policy did not exclude applicants because they had partners, children or other family ties. The relevant criteria concerned the country of origin and whether the claim appeared capable of speedy determination. Harmondsworth’s accommodation could house only unaccompanied men, but that operational limitation did not alter the substantive policy.
3. The statement made by counsel in R (Refugee Legal Centre) v Secretary of State [2004] EWHC 684 was sufficiently accurate for that case but could not reformulate the Secretary of State’s policy. The court therefore relied on the ministerial statements and the evidence explaining the operation of the scheme.
4. Paragraph 16 of Schedule 2 to the Immigration Act 1971 permitted detention pending examination and the decision whether to grant or refuse leave to enter. Following the reasoning adopted in R (Saadi) v Home Secretary [2002] UKHL 41, detention for that purpose did not require proof of a risk of absconding, although the period had to be reasonable.
5. The proportionality principles identified in R (Daly) v the Home Secretary [2001] 2 AC 532 and de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 applied. Short detention to secure speedy determination of straightforward asylum claims could be necessary and proportionate under article 8. The claimant’s previous failure to comply with his conditions of entry, failure to leave, use of a false name, inconsistent answers, and disruptive conduct made detention reasonably necessary in this case.
6. No evidence established that the conditions or legal assistance at Harmondsworth compromised the lawfulness of detention. Nor was it shown that detention prevented the claimant’s advisers or immigration officers from obtaining relevant evidence from his partner or her mother.

The proceedings began as an application for judicial review. On 13 May 2004, Mr Justice Bennett suspended the interview and decision-making process. On 17 May 2004, he granted permission, continued the suspension and directed the claimant’s release. The present court discharged that order so the asylum process could continue.