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

The claimant challenged the lawfulness of the Secretary of State's Detained Fast Track (DFT) policy and practice, arguing it was unlawful at common law and breached Article 5(1)(f) ECHR and Article 14 ECHR. The court reviewed the statutory basis in paragraph 16 of Part 1 of Schedule 2 to the Immigration Act 1971, relevant EU Directives and Convention rights, and authorities including Saadi, Lumba and R (Refugee Legal Centre) v SSHD. The judge concluded that the DFT policy is not unlawful in its terms and that inclusion of the appeals stage within the DFT is lawful. However, significant operational shortcomings were identified: an inadequately focused screening process, deficiencies in the Rule 35 safeguard for victims of torture, and a problematic "period of inactivity" between induction and allocation of legal representatives. Those shortcomings produce an unacceptably high risk of unfair determinations for potentially vulnerable applicants unless remedied. The court therefore refused a general declaration of unlawfulness but indicated remedial measures are required (in particular earlier instruction of lawyers) and reserved the terms of any order.

This judicial review concerned a public law challenge to the Home Office’s Detained Fast Track (DFT) for some asylum seekers. Detention Action (a charity) alleged that the DFT, as operated, is unlawful at common law and incompatible with Article 5(1)(f) ECHR, and raised discrimination and related concerns with the Equality and Human Rights Commission intervening.

Nature of the claim / relief sought

• A general challenge to the lawfulness of the DFT policy and its operation (not a claim on behalf of any individual detainee).
• Allegations included breach of Article 5(1)(f) ECHR, Article 14 ECHR, and common law objections to unfair executive policy and practice.

Issues framed by the court

• Statutory and Convention basis for detention (paragraph 16, Schedule 2 Immigration Act 1971; Article 5 ECHR).
• Compatibility of the DFT with EU Directives (Procedures Directive and Reception Directive) and domestic obligations.
• Whether the DFT process was inherently unfair or arbitrary given operational changes since Saadi and related authorities.
• Screening, suitability criteria (including the RAG list), safeguards (Rule 34/35), handling of vulnerable groups (trafficking, torture, sexual violence, FGM, pregnancy, mental health), duration of detention and the availability and timing of legal representation.

Court’s reasoning and outcome on those issues

• The statutory detention power in paragraph 16 Schedule 2 covers detention pending examination and appeal and the court found no legal bar to operating a fast-track procedure that includes appeals.
• Earlier case-law (notably Saadi) supports the legitimacy of a detained fast-track for cases "suitable for a quick decision"; Lumba requires policy clarity and safeguards against arbitrariness and these principles were applied.
• The court accepted the DFT’s overarching criterion (suitability for a quick decision) and held that operational tools such as the RAG list and other internal guidance did not render the policy unlawful even if not published; the absence of a rigid nationality list did not by itself make the system arbitrary.
• Significant operational faults were identified: screening is insufficiently focussed to identify all vulnerable or complex cases; Rule 35(3) reports often do not function effectively as an independent safeguard for torture victims; in practice legal representatives are commonly allocated too late (a "period of inactivity" after induction) so that many detained applicants have inadequate time to prepare for the substantive interview and appeal.
• These shortcomings raise an unacceptably high risk of unfair determinations for potentially vulnerable applicants, although the court did not find the policy unlawful in all cases or as a generality. The judge directed that remedial steps are required (notably earlier instruction of lawyers) and reserved the precise terms of relief, to be addressed at a further hearing.

The judgment therefore refused a general declaration of unlawfulness but required the Secretary of State to remedy operational defects to avoid unfairness to vulnerable detainees.

First instance: the court refused a general declaration that the Detained Fast Track policy is unlawful but held that the DFT, as operated, creates an unacceptably high risk of unfair determinations for potentially vulnerable applicants. The DFT policy itself was held not unlawful in principle (including the application of DFT criteria to the appeal stage), but the court required remedial operational measures (in particular earlier instruction of legal representatives and improved screening/safeguards) and reserved the terms of any order for a further hearing.