TH (Bangladesh) & Ors, R (On the Application Of) v Secretary of State for the Home Department

A systemic challenge to an administrative process for asylum claims requires examination of the full run of cases. It succeeds only where unfairness is inherent in the system, rather than merely possible in individual cases, and the system lacks capacity to react appropriately. The court may consider screening, detention reviews, medical safeguards and early legal representation. A policy need not state fairness expressly, but must publish information needed for informed and meaningful representations. Relief for breach of the public sector equality duty under section 149 of the Equality Act 2010 remains discretionary. A declaration may suffice where non-compliance made no difference and quashing would serve no useful purpose.

Three detained asylum seekers sought permission to appeal against Cranston J’s decision in [2016] EWHC 1331 (Admin). The High Court had broadly dismissed generic and individual challenges to the Detention: Interim Instruction and Detained Asylum Casework processes. It had declared a failure to comply with the public sector equality duty, found separate detention unlawful in the case of TCV, and allowed ZA to challenge certification of her asylum claim as clearly unfounded.

The Court of Appeal considered whether the DII/DAC system was inherently unfair, whether its publication and flexibility arrangements were legally sufficient, whether the remedy for the equality-duty breach was adequate, whether the individual cases disclosed error, and whether the stayed cohort had been case-managed fairly.

Disposition. Beatson LJ, with Sales LJ agreeing, refused all three applications for permission to appeal.

1. The court adopted the systemic fairness threshold identified in R (Refugee Legal Centre) v SSHD [2004] EWCA Civ 1481 and R (Detention Action) v First Tier Tribunal [2015] EWCA Civ 840. The court must examine the full run of cases, require more than possible aberrant decisions or individual unfairness, identify unfairness inherent in the system, and ask whether the system can react appropriately to secure fairness. Cranston J was entitled to assess all safeguards and evidence.
2. The DII/DAC process had to be assessed on its own terms. The consent order in R (JM) v Secretary of State for the Home Department [2015] EWHC 2331 (Admin) could not bind litigation concerning different administrative arrangements. The DII differed fundamentally from the DFT because detention was governed by chapter 55 of the EIG and the Hardial Singh principles, with screening, medical safeguards, reviews and early legal access. A policy need not state fairness expressly. It must publish what is needed for informed and meaningful representations. The late challenge to the unpublished process map disclosed no pleaded or demonstrated prejudice.
3. The remedy for breach of section 149 of the Equality Act 2010 was discretionary. The court was not required to quash the policy automatically or to state expressly that a declaration could suffice only in an exceptional case. The judge had considered the available steps and was entitled to find no demonstrated loss or different outcome.
4. The individual challenges disclosed no arguable error. A late claim, a need for further documents, medical complaints, or a rule 35 report not accepted as independent evidence of torture did not automatically require release where the chapter 55 criteria remained satisfied. ZA’s position changed only when the complexity of her claim and the explanation for her delayed asylum application became clear.
5. The case-management order for the stayed cohort provided a fair opportunity to amend grounds after the test-case judgment. Permission failed because the grounds had no real prospect of success and there was no compelling reason for a Full Court. The stay was extended to 4 pm on 11 August 2016; costs orders and detailed assessment directions were made.

1. Court of Appeal (Civil Division). Permission to appeal was refused. The stay concerning the DII cohort was extended on limited terms, and costs directions were made.
2. High Court of Justice, Queen’s Bench Division, Administrative Court. Cranston J’s decision in [2016] EWHC 1331 (Admin) broadly dismissed the generic and individual challenges, while granting declaratory relief concerning section 149 of the Equality Act 2010.