Detention Action, R (on the Application of) v Secretary of State for the Home Department

In a systemic judicial review challenge, the court has a wide discretion as to remedy. A finding that a detention or fast-track system is being operated unlawfully does not automatically require the system, all appeals or removals to be halted. Where the claim is prospective, the defendant is addressing the identified defect, and individual cases can be dealt with individually, declaratory relief may be sufficient. Blanket relief may be excessive or unnecessary. An appellate court should ask whether the lower court had a discretion and whether it was wrongly exercised, considering the material available when the decision was made.

Detention Action brought a systemic judicial review challenge to the operation of the Detained Fast Track system for asylum and human rights claims. Ouseley J found that, as at 9 July 2014, the system created an unacceptable risk of unfair determinations for vulnerable or potentially vulnerable applicants who lacked sufficiently early access to legal advice. He granted a declaration of unlawfulness but refused wider orders halting processing, appeals and removals.

The appeal concerned whether further relief was required and whether the appellate process should be removed from the system. The substantive question whether appeals were lawfully included in the Detained Fast Track was not determined in this appeal.

1. Appeal dismissed. The Court of Appeal unanimously held that Ouseley J had a discretion to grant declaratory relief alone and had exercised it properly.
2. Remedial discretion. Judicial review remedies are discretionary. This was a prospective, systemic challenge, rather than an individual claim for unlawful detention or a retrospective challenge to every decision made under the system. The judge was entitled to consider that the Secretary of State was actively addressing the identified unlawfulness by providing four clear working days for legal instructions and reviewing affected cases. A proposed blanket prohibition was also problematic because the time required for proper legal advice depended on the facts of each case. Individual problems could be addressed through the liberty to apply provision.
3. Appeals within the system. The appeal did not determine the substantive issue whether appeals fell within the Detained Fast Track or whether that policy could be justified. Ouseley J had declined to decide that issue because it had not been properly raised below. Any substantive challenge had to be pursued in ordinary sittings. On the assumed correctness of the declaration, removing all appeals from the system was an excessive and unnecessary blanket remedy. First-tier Tribunal judges were nevertheless required to consider whether the speed and method of processing affected fairness.
4. Appeal-rights-exhausted cases and removals. The declaration did not require every case to be re-examined or every removal to be stayed. An individual applicant had to provide evidence of a specific effect on the fairness of the claim. A fresh claim required more than the fact that the applicant had been processed in the Detained Fast Track. Applications to stay or set aside a removal direction remained available in an appropriate case. The Secretary of State’s interim review arrangements could be challenged, if necessary, in the Administrative Court in an individual case.
5. Appellate review. The parties’ new evidence about later compliance was not determinative. The relevant questions were whether the judge had a discretion and whether it was wrongly exercised, assessed on the material available when he made his decision. The refusal of further relief fell within the proper ambit of that discretion.

• Court of Appeal (Civil Division): In [2014] EWCA Civ 1270, the appeal against the refusal of further relief was dismissed.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Ouseley J, in [2014] EWHC 2245 (Admin), declared the Detained Fast Track system unlawful to the limited extent identified but refused additional prohibitory and consequential orders.