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

A published policy governing executive detention must state with sufficient clarity and transparency the circumstances in which the power will be exercised. An objectively ascertainable meaning does not suffice if that meaning emerges only elusively from provisions dealing with other subjects.

A fast-track asylum policy may in principle authorise detention pending appeal by applying criteria based on quick processing rather than the general detention criteria. In this case, however, the policy failed the required standard of publication. Moreover, although unnecessary to the decision, the evidence did not establish that detaining appellants who presented no risk of absconding was necessary or reasonable.

Detention Action challenged the Secretary of State’s practice of detaining asylum applicants within the detained fast-track process after refusal of their claims and pending their appeals. Ouseley J had held the pre-decision operation of the process unlawful in part, but declined to determine the lawfulness of detention during the appeal stage: [2014] EWHC 2245 (Admin).

The remaining appeal concerned whether post-decision detention under the fast-track “quick processing” criteria breached the published policy, whether the policy met the requirements of clarity and transparency, and whether detention of persons who did not satisfy the general detention criteria was justified.

1. Appeal allowed and order varied. The published detained fast-track policy had changed in 2008. Properly interpreted, it authorised continued detention after refusal of an asylum claim and pending appeal where the applicant continued to satisfy the “quick processing” criteria. Such detention therefore did not breach the policy and was not objectionable in principle.

2. A policy document should be read practically and with common sense, giving effect to its evident purpose rather than treating its language as if it were a statute. The structure of the guidance, its provisions concerning timescales and travel documentation, and the fast-track tribunal rules showed that the relevant “decision” encompassed both the Secretary of State’s decision and the tribunal’s decision on appeal.

3. Nevertheless, a published policy governing detention must identify with sufficient clarity and transparency the circumstances in which the broad statutory power will be exercised. This requirement is particularly important where personal liberty is at stake. The inclusion of post-decision detention emerged only elusively from provisions concerning timescales and travel documentation. A senior Home Office official had also acknowledged that it was not entirely clear that the process included a fast-track appeal. The policy consequently failed the standard required by the rule of law.

4. It was unnecessary to determine whether continued detention was justified. Beatson LJ nevertheless concluded that the evidence would not have established justification. The reasoning which supported short pre-decision detention in Saadi depended on the need to manage numerous interviews and on the short duration of detention. It could not be transferred to the appeal stage without a sufficient factual basis.

5. The evidence did not show that detention was necessary to enable tribunals to hear appeals quickly, that suitable non-custodial arrangements were unavailable, or that release would impede later removal. It therefore did not justify detaining a person who presented no risk of absconding and did not meet the general detention criteria. Floyd and Fulford LJJ agreed with Beatson LJ.

1. Court of Appeal (Civil Division): By [2014] EWCA Civ 1634 , allowed the remaining appeal and varied Ouseley J’s order to declare that the policy governing detention pending appeal failed the requirements of clarity and transparency.
2. Court of Appeal (Civil Division): By [2014] EWCA Civ 1270 , a differently constituted court had dismissed the expedited appeal concerning the refusal of prohibitory and mandatory relief.
3. High Court, Administrative Court: Ouseley J held aspects of the pre-decision operation of the detained fast-track process unlawful in [2014] EWHC 2245 (Admin) , gave a further relief judgment in [2014] EWHC 2525 (Admin), and declined to determine the lawfulness of detention pending appeal.