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

The Court of Appeal refused permission to appeal against Cranston J’s dismissal of generic and individual challenges to the Detention: Interim Instruction (DII) and the Detained Asylum Casework (DAC) process. Key legal principles applied were the public sector equality duty under section 149 of the Equality Act 2010, the established High Court/appeal test for inherent unfairness of an administrative process (requiring examination of the “full run” of cases and a high threshold to show unfairness inherent in the system), and the chapter 55 detention criteria (Hardial Singh principles). The court held that (i) remedial relief for the s.149 breach was within the judge’s discretion and there was no error of law in granting only a declaration, (ii) the DII/DAC process is materially different from the earlier Detention Fast Track and is not inherently unfair on its terms or in operation, (iii) published safeguards (screening, gatekeeping, rule 35, review mechanisms, legal aid access) showed the system had capacity to react to secure fairness, and (iv) the individual claimants did not show arguable error in the judge’s factual or legal conclusions about their detention or processing. The appeals therefore had no real prospect of success.

Background and nature of the application: The applicants TH, ZA and MNK sought permission to appeal against Cranston J’s order (15 June 2016) which largely dismissed challenges to the Home Office’s Detention: Interim Instruction and Process Map and the Detained Asylum Casework process. The challenges included a generic attack that DII/DAC was inherently unfair and individual challenges to the lawfulness of each applicant’s detention and handling. The High Court judgment had found a breach of the public sector equality duty under section 149 of the Equality Act 2010 but only granted a declaration rather than quashing the policy.

Procedural posture: This was an application for permission to appeal to the Court of Appeal from the Administrative Court (Cranston J, reported at [2016] EWHC 1331 (Admin)). The DII cohort comprised a number of stayed cases managed in the High Court test litigation.

Issues framed:

• Whether Cranston J erred in not quashing the DII policy after finding a s.149 Equality Act breach.
• Whether the DII/DAC policy was unlawful for want of express procedural fairness, lack of transparency (including non-publication of the interim process map), or by operating on hidden inclusionary criteria (such as presuming claims to be late, opportunistic or weak).
• Whether the DII/DAC process was inherently unfair as a matter of law, applying the test that requires examination of the "full run" of cases and whether unfairness is inherent in the system.
• Whether Cranston J erred in his approach to the three individual detainees and their detention reviews, including treatment of rule 35 reports and adequacy of opportunities to present asylum claims.
• Whether the judge’s case-management order lifting stays was procedurally unfair.

Reasoning and disposition: The Court of Appeal reviewed Cranston J’s careful factual and legal analysis and concluded there was no arguable error of law or principle. On remedy for the s.149 breach the court held remedial relief is discretionary: Cranston J had considered the position and there was no error justifying intervention. On procedural fairness the court held that what needs to be published is what enables meaningful representations; an express statement that the decision-making process must be fair is not always required where the policy and its operational safeguards (screening, gatekeeping, reviews, rule 35 and access to legal advice) afford a fair opportunity. On inherent unfairness the court emphasised the high threshold: a system is only unlawful if unfairness is inherent across the full run of cases; Cranston J had correctly assessed the protections and relied on the evidence for the full run of cases. On individual claims, the court found no realistic prospect of overturning Cranston J’s factual and legal conclusions about detention reviews, rule 35 handling and the applicants’ circumstances. The application for permission to appeal was refused.

The application for permission to appeal was refused. The Court of Appeal concluded there was no real prospect of success on the grounds advanced: Cranston J had not erred in law in (a) exercising his remedial discretion after finding a s.149 Equality Act breach, (b) assessing the DII/DAC policy and its safeguards and rejecting a finding of inherent unfairness, and (c) his factual and legal conclusions on the individual detainees. The high threshold for impugning an administrative system and the requirement to consider the "full run" of cases were determinative.

This was an application for permission to appeal to the Court of Appeal from the Administrative Court (Cranston J) reported at [2016] EWHC 1331 (Admin). The Court of Appeal (Beatson LJ and Sales LJ) heard the permission application and refused permission by judgment dated 10 August 2016 ([2016] EWCA Civ 815). The judgment engages and distinguishes prior fast-track and detention litigation cited in the judgment (for example R (Detention Action) v SSHD [2014] EWCA Civ 1634 and R (Detention Action) v First Tier Tribunal [2015] EWCA Civ 840) as part of the factual and legal context.