Hossain & Ors v Secretary of State for the Home Department (Rev 1)

This judicial review concerned the lawfulness of the Home Office Detention Interim Instruction (DII) and related process maps governing how asylum claims are handled where claimants are in immigration detention. The principal legal questions were whether the DII operated as an unlawful detained fast-track equivalent; whether fairness needed to be made explicit in the policy; whether the DII was inherently unfair as a system; and whether the Secretary of State had complied with the public sector equality duty in section 149 of the Equality Act 2010. The court held that the DII was a policy distinct from the detained fast-track and that, on its face and having regard to the evidence about how it operates (including screening, Rule 34/35 procedures, the National Removals Command and legal aid access), it was not inherently or systemically unfair. However the court found that the Secretary of State had failed to give proper regard to the public sector equality duty and made a declaration to that effect. The court also held that one claimant (TCV) had been unlawfully detained. The judgment relied on Chapter 55 of the Enforcement Instructions and Guidance, the Detention Centre Rules (Rule 34/35) and section 94 of the Nationality, Immigration and Asylum Act 2002 as relevant statutory and policy materials.

This is a first-instance judicial review challenging the Home Office process for considering asylum claims made by persons in immigration detention after the suspension of the detained fast-track (DFT) in July 2015. The challenge was advanced in two ways: as a test case representative of many similar claims and as a generic challenge to the DII as an inherently unfair process. Over one hundred similar cases were stayed pending this decision.

Background and parties: The four representative claimants were detained migrants whose asylum claims were handled under the Detained Asylum Casework arrangements and the Detention Interim Instruction (DII). The Secretary of State relied on existing detention policy in Chapter 55 of the Enforcement Instructions and Guidance (EIG), Rule 34/35 processes, the National Removals Command (NRC) gatekeeping and newly formed detained asylum casework teams (DAC).

Relief sought: The claimants sought declarations and relief that the DII and related process maps were unlawful in various respects and that their detentions and the processing of their asylum claims under those arrangements were unlawful. They also alleged breach of the public sector equality duty (Equality Act 2010 s.149).

Issues framed:

• Whether the DII was effectively the detained fast-track (DFT) in different form and so unlawful under the reasoning in previous DFT litigation;
• Whether fairness had to be made explicit in the policy and whether the DII was inherently unfair as a system;
• Whether the Secretary of State had complied with the public sector equality duty in adopting and applying the DII;
• Whether the individual test claimants had been unfairly or unlawfully detained or had been denied a fair opportunity to present their asylum claims.

Court’s reasoning and conclusions: The court found that the DII is a policy document governing how asylum claims in detention are processed, but it is materially different from the DFT because detention under the DII remains governed by Chapter 55 EIG criteria (including an absconding/ removability focus) and is not premised solely on the prospect of a speedy determination. The court accepted the Secretary of State’s evidence that the DII and Process map include flexibility, that screening, NRC gatekeeping, legal aid access, Rule 34/35 mechanisms and detention reviews operate to identify vulnerabilities and to release persons where detention is not compatible with Chapter 55. On the evidence for the full run of cases the DII was not shown to be inherently unfair, though individual mistakes can occur (and one claimant, TCV, was found to have been unlawfully detained). However the Secretary of State had not in all respects discharged the public sector equality duty under section 149 of the Equality Act 2010 in relation to the DII and the court made a declaration to that effect. The court noted the limits of a court in undertaking a systemic inquiry and referred to the Shaw Report as relevant wider context.

This is a first-instance judicial review: the claim is allowed in part. The court rejected generic and most case-specific challenges to the lawfulness of the Detention Interim Instruction and associated process maps, concluding they were not equivalent to the detained fast-track and were not inherently unfair in the round, because Chapter 55 EIG safeguards (including screening, Rule 34/35, NRC gatekeeping and access to legal advice) and the Process map provide flexibility to protect fairness. However the court found that the Secretary of State had not complied fully with the public sector equality duty under section 149 of the Equality Act 2010 and made a declaration to that effect. The court also held that one claimant (TCV) had been unlawfully detained; the other claimants’ detentions and processing were not unlawful on the facts presented.