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

A system for deciding asylum claims in immigration detention is not inherently unfair merely because it operates more quickly than ordinary asylum processing. The question is whether, across the full run of cases, the system has the capacity to respond appropriately where fairness requires flexibility, additional evidence or release from detention. Asylum claims require the highest standards of fairness, but a policy need not restate the general duty to act fairly if that duty is operationalised through its procedures. A consent order in different litigation does not create a binding precedent. The Secretary of State nevertheless breached the public sector equality duty by failing to have due regard to all relevant protected characteristics when considering asylum claims in detention. One claimant’s detention was unlawful because an erroneous trafficking assessment caused him to be detained.

The four claimants challenged the lawfulness of the Secretary of State’s Detention Interim Instruction and associated process for handling asylum claims made by people in immigration detention after suspension of the detained fast-track policy. The claims were advanced both as a generic challenge to the system and as individual test cases.

The central issues were whether the new process was legally equivalent to the former detained fast-track, whether its lack of an express fairness criterion made it unlawful, whether it operated with inherent systemic unfairness, and whether the Secretary of State had complied with the public sector equality duty. The individual cases also raised questions about detention, vulnerability, Rule 35 reports and trafficking assessments.

1. The generic challenge. The DII and Process map constituted a policy, but they were fundamentally different from the detained fast-track. The former detained asylum seekers because their claims could be decided quickly; the DII made detention depend principally on Chapter 55 of the EIG, including immigration-control considerations and risk of absconding. A consent order in R (on the application of JM, RE, KW, MY) v Secretary of State for the Home Department [2015] EWHC 2331 (Admin) was binding between its parties but created no binding precedent in different litigation.
2. The fairness challenge required consideration of the full run of cases. The system would be unlawful only if unfairness were inherent in it, rather than merely possible in individual cases, and the relevant question was whether it had the capacity to react appropriately where fairness required. The DII’s indicative timescales were flexible. Requests for additional time, documents, translations or evidence had to be considered, and detention had to be reviewed if processing became significantly delayed.
3. Screening, NRC reviews, Rule 34 and Rule 35 processes, access to legal representatives, substantive interviews and post-interview evidence collectively gave the system capacity to release applicants or extend time where fairness demanded. The generic challenge therefore failed, although individual cases could still involve unlawfulness.
4. The absence of an express statement that caseworkers must act fairly did not invalidate the policy. Procedural fairness was an established public-law principle and was sufficiently operationalised by the policy’s requirements for review and flexibility.
5. The public sector equality duty under section 149 of the Equality Act 2010 required proportionate regard to relevant protected characteristics both when formulating the policy and, where necessary, in individual cases. The Secretary of State had taken important steps, but had not paid due regard in all respects to the protected characteristics engaged by asylum claims in detention. A declaration was appropriate.
6. Hossain and MNK were lawfully detained and their claims could properly be treated initially as late claims capable of frustrating removal. Auleear’s detention was not shown to be unlawful, although the fairness of determining her claim within the indicative period was arguable after the nature of her claim emerged. TCV’s detention was unlawful because the trafficking authority had wrongly treated his disappearance as establishing that he was not a potential trafficking victim. The damages issue was transferred to the Queen’s Bench Division.

First-instance judicial review proceedings. No earlier judicial decision in the same proceedings was identified as the decision under appeal.