Detention Action v Secretary of State for the Home Department

A detained fast-track asylum system is not unlawful merely because it uses broad suitability criteria, includes appeals, or covers potentially vulnerable categories. It must provide a fair opportunity to present the claim and avoid an unacceptable risk of unfairness inherent in the system. Screening must assess the effect of detention and accelerated timetables on fair presentation. Where screening and later safeguards cannot reliably identify vulnerable or complex cases, legal representation must be arranged early enough for proper advice, preparation and referrals. A period of inactivity before allocation of a lawyer, followed by an interview shortly afterwards, created too high a risk of unfairness, especially for vulnerable applicants. The policy was lawful in principle, but its operation required remedial change.

Detention Action, an incorporated charity, sought judicial review of the Secretary of State’s policy and practice for detaining certain asylum seekers while their claims and appeals were processed in the Detained Fast Track. The Equality and Human Rights Commission intervened. The claim challenged the system under common law and Articles 3, 5, 13 and 14 of the ECHR. The court considered the statutory detention powers, policy transparency, screening, vulnerable applicants, detention duration, appeal procedures, legal representation and detention conditions. The central issue was whether the Detained Fast Track, as operated, created an unacceptable risk of unfairness or otherwise rendered detention unlawful.

1. Outcome. The claim succeeded in part. The Detained Fast Track policy was lawful in its terms, and detention was not unlawful in principle. However, the system as operated created too high a risk of unfairness because legal representatives were instructed too late. The judge adjourned consideration of the terms of the order.
2. Statutory and Convention framework. Paragraph 16 of Schedule 2 to the Immigration Act 1971 authorised detention pending examination, a decision on leave to enter and an appeal against refusal. The same Detained Fast Track suitability criteria could lawfully apply during the appeal stage. The reasoning in R (Saadi and Others) v SSHD [2002] UKHL 41 did not impose an absolute seven-to-ten-day maximum. The whole period had to remain reasonable and efficiently managed. Regular reviews should consider duration and any inefficiency, particularly after about 30 days.
3. Fairness and legal certainty. Applying the approach in R (Refugee Legal Centre) v SSHD [2004] EWCA Civ 1481, the question was whether the system provided a fair opportunity to present a claim and avoided an unacceptable risk inherent in the system, rather than merely individual aberrant decisions. Under R (Lumba) v SSHD [2011] UKSC 12, the detention policy had to be transparent, sufficiently precise and foreseeable. The overarching criterion of suitability for a quick decision, supported by inclusionary, exclusionary and operational factors, was sufficiently clear. Publication of the RAG list was desirable but not essential to legality.
4. Screening and safeguards. Officials had to consider not only whether a quick decision and detention were suitable, but also whether detention and the timetable would permit fair presentation. The screening process did not require a lawyer or a detailed preliminary investigation. Rule 35 reports, however, had to be assessed both for independent evidence of torture and for continuing suitability for fair determination in the Detained Fast Track. New material could not place the burden on the detainee to prove that the original decision was wrong.
5. Vulnerable applicants and discrimination. Claims involving torture, trafficking, FGM, rape, domestic violence, early pregnancy, mental health or learning difficulties were not automatically excluded. Suitability had to be assessed individually. The challenge under Article 14 was rejected. A request for a female interviewer or interpreter should be met where possible, but an automatic entitlement was not required.
6. Critical defect. The combination of weaknesses in screening and safeguards made early legal advice the crucial protection. The period of inactivity before allocating lawyers, and the short interval before the substantive interview, meant that in too high a proportion of cases lawyers lacked time to take instructions, obtain evidence and seek referrals. Earlier instruction of lawyers was therefore required.