Cham, R (on the application of) v Secretary of State for the Home Department (Rev 1)

An asylum claim may enter a detained fast-track process where, on the information reasonably available at the time, it appears suitable for speedy and fair determination. A claim based on sexual orientation is not automatically unsuitable. However, later independent medical evidence of torture and vulnerability may make continued fast-track processing irrational and unfair. Where the process has caused material disadvantage, an appeal is not necessarily an adequate remedy: the original asylum decision may require quashing and reconsideration from the beginning. Continued detention after an asylum refusal must be justified under the applicable general detention criteria. Detention under the wrong policy is unlawful unless the Secretary of State establishes that lawful detention would nevertheless have followed.

The claimant, a Gambian national, claimed asylum in June 2014 on grounds including bisexuality and past ill-treatment. His claim was placed in the detained fast-track process, refused, and dismissed on appeal. Later medical reports identified physical injuries and PTSD consistent with torture and supported an explanation for his late disclosure. The Secretary of State nevertheless maintained the refusal and detention.

The claimant sought judicial review of the asylum decisions, the fast-track process and his detention. The issues included whether the initial allocation was unlawful, whether subsequent evidence required the asylum decisions to be quashed, and whether detention was lawful during successive periods.

1. Initial fast-track allocation. The decision to place the claim in the detained fast-track on 25 June 2014 was lawful. A sexual-orientation claim is not, merely for that reason, unsuitable for fast-track determination. The relevant question is whether the particular claim appears capable of fair and speedy determination on the information reasonably available. At that stage the claimant had been in the United Kingdom for seven years, had access to solicitors, identified no further evidence at screening, and disclosed no information making the claim unsuitable.
2. Later medical evidence and asylum decisions. By November 2014, Dr Cohen’s report was independent evidence of torture. The Secretary of State failed properly to recognise the expertise of the Foundations, the significance of Istanbul Protocol evidence, and the proper role of expert opinion in assessing fabrication, PTSD and credibility. The later evidence supplied individualised proof that the claimant might be vulnerable, unable or unwilling to disclose humiliating experiences in the fast-track setting. The decisions of 8 July 2014, 11 November 2014 and 25 September 2015 were therefore quashed.
3. An appeal was not an adequate remedy. The defect concerned the fairness and context of the initial fact-finding process, not merely the merits of the refusal. A fresh decision had to be made without relying on the previous asylum and First-tier Tribunal decisions, although the screening and substantive interview records could be considered. Any adverse fresh decision would provide the proper starting point for a later appeal.
4. Detention. The absence of the rule 34 medical-practitioner examination did not itself make detention unlawful on the facts. Detention after 8 July 2014 was unlawful because the fast-track detention policy no longer applied and the general criteria, including the presumption of release, had not been applied. The Secretary of State did not show that lawful detention would probably have followed. Detention from 27 August to 11 November was lawful because removal was imminent and the general criteria justified detention. After 11 November, Dr Cohen’s report constituted independent evidence of torture, making continued detention unlawful until release on bail on 18 December.
5. The claimant was entitled to compensatory damages for detention between 9 July and 27 August and between 11 November and 18 December. Damages could be assessed in the county court if not agreed.

First-instance judicial review in the Administrative Court. The judgment describes earlier First-tier Tribunal and Upper Tribunal decisions dismissing the claimant’s asylum appeal and refusing permission to appeal, but those decisions were set aside as part of the relief granted in this claim.