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

An asylum seeker may not be removed while a claim remains pending, including where further submissions have been made and have not been lawfully determined and notified. Detention in the Detained Fast Track process is not, by itself, a sufficient basis for detention after the asylum decision. After that decision, detention requires lawful reasons under the general detention policy, proper notice, and compliance with the applicable safeguards.

Where an adverse decision is not communicated, or is communicated so late that the person cannot obtain advice and access to justice, it cannot lawfully support removal. Serious procedural failures, including interviewing an unrepresented applicant contrary to policy and allowing inadequate preparation time, may undermine the fairness of the process. The court may order effective restorative relief, including reasonable steps to secure return to the United Kingdom.

H, an Afghan national, arrived in the United Kingdom and claimed asylum. He was detained and placed in the Detained Fast Track process. His claim was refused, his appeal rights were exhausted, and removal directions were issued.

Before removal, his solicitors made further submissions said to constitute a fresh asylum claim. The Secretary of State asserted that the submissions had been rejected by a letter dated 18 August 2014, but the court found that the letter had not been served, or had been served too late to permit effective legal advice. H was removed on 19 August 2014.

The claim sought declarations concerning the legality of removal and detention, damages, and an order securing H’s return. The central issues were whether the further submissions remained pending, whether detention had been lawfully justified and notified, and what relief was appropriate.

1. Removal. The further submissions made on 5 August 2014 had not been lawfully determined and notified before removal. The removal therefore breached section 77 of the Immigration and Asylum Act 2002 and paragraph 353A of the Immigration Rules. Communication of an adverse administrative decision must allow a person a reasonable opportunity to obtain advice and challenge it. A decision served on the day of removal, without a realistic opportunity for legal advice, could not cure the defect.
2. Procedural fairness. H had been interviewed without his legal representatives, despite the Secretary of State’s guidance requiring contact with the representatives and an opportunity either to proceed or to adjourn. The interview was arranged before a reasonable period for preparation had elapsed. The four-clear-working-days period identified in the Detention Action litigation was a useful yardstick, though not an inflexible rule. The failures were especially material because H required an interpreter, was not in perfect health, and later reported dizziness. The cumulative effect created a significant risk of unfairness and affected the weight to be given to the ensuing decisions.
3. Detention. Fast Track inclusion did not itself justify detention pending appeal. Before appeal rights were exhausted, detention required reasons under the general detention criteria. After exhaustion, detention could be justified by imminent removal, but the Secretary of State still had to give proper reasons, consider alternatives, and comply with policy. The reason actually given on 24 June 2014 was insufficient. The detention was unlawful from 24 June to 7 August 2014. Detention from 7 August to removal was also unlawful for want of proper reasons, but damages for that period were nominal.
4. Relief. The court declared the removal unlawful and ordered the Secretary of State to take all reasonable measures to procure H’s return to the United Kingdom, where any asylum application would require a further decision. Damages for unlawful detention were referred to a Master of the Queen’s Bench Division for assessment.

First-instance judicial review proceedings in the Administrative Court. The judgment records earlier decisions refusing permission to appeal in the immigration proceedings, but no appeal from the judgment itself.