Zafar, R (on the application of) v The Secretary of State for the Home Department

Detention in a fast-track asylum process is unlawful where the claim is too complex for fair determination within the accelerated timetable, or where the claimant is actually or potentially vulnerable. Suitability must be assessed on the information reasonably available at screening or, where relevant, at the substantive interview. A claim turning on sufficiency of protection is neither automatically suitable nor unsuitable; the assessment is fact-sensitive. Where an interview has been conducted through an unfair process and there is a real risk that the resulting evidence is unreliable, the decision-maker must exclude that evidence and reconsider the claim afresh. The appropriate remedy depends on the particular facts.

The claimant, a Pakistani national, sought judicial review of his detention in the former Detained Fast Track and of the refusal of his asylum or humanitarian protection claim. His case was initially assessed as unsuitable for the fast track, but he was later detained without any recorded rational explanation for reversing that assessment. His substantive interview proceeded without his expected legal representative despite evident difficulties with comprehension, concentration and coherence. His claim was refused and certified as clearly unfounded, and he remained detained after the fast-track policy was suspended. The issues were whether his detention was unlawful and whether the refusal decision should be quashed or left to be addressed through a fresh claim.

1. The claim succeeded. The claimant was unlawfully detained from 18 May 2015 to 16 December 2015 inclusive. He was entitled to a declaration and damages.
2. Two categories of claim were unsuitable for the fast track: claims whose nature or complexity required further inquiries incompatible with a fair decision within about one or two weeks, and claims brought by actually or potentially vulnerable persons. A claim which might be suitable for another claimant could be unsuitable because of the individual claimant’s vulnerability.
3. Suitability had to be assessed using the information reasonably available at screening or, where necessary, at the substantive interview. The decision-maker was not required to act on information the claimant had failed to disclose and which could not reasonably have been identified. A claim based on sufficiency of protection was not automatically suitable or unsuitable; the issue was fact-sensitive and depended on the particular protection claim.
4. On the facts, there was sufficient information at screening to show that the claim was not straightforward and that the claimant was vulnerable or potentially vulnerable. The initial decision to exclude him from the fast track was therefore correct. The unexplained later reversal was irrational. In any event, the substantive interview made the claim’s unsuitability beyond doubt. The claimant had difficulty understanding and answering questions, and fairness required the interview to stop.
5. The refusal decision of 12 June 2015 was not allowed to stand merely because a later appeal or fresh claim might be available. The claimant had not received a fair opportunity to present his case. The decision was a nullity and was quashed.
6. The SSHD was required to determine the international protection claim afresh. The claimant’s letter of 9 March 2015 and screening interview could be considered, but his answers at the substantive interview of 8 June 2015 could not be relied upon because of the real risk that they were produced by an unfair and inherently unreliable process. Damages were to be assessed by the Central London County Court if not agreed within three months.

First-instance judicial review claim. No earlier decision in the same proceedings was identified in the judgment.