Hameed & Anor v The Secretary of State for the Home Department

An asylum seeker detained under a procedurally defective fast-track system cannot lawfully be detained on the assumption that removal will occur within a reasonable period if the asylum claim has not been lawfully determined. A fast-track scheme is unlawful where its time limits make a fair hearing impossible in a significant number of cases and its safeguards do not cure that defect. Detention cannot be justified by a general assertion that the claimant may abscond. A lawful, evidence-based assessment of that risk is required. Where no lawful basis for detention is established, damages may be awarded for the entire period of detention and should not be reduced to nominal damages merely because detention was connected with an asylum process.

Abdul Hameed and Rashida Jabeen, Ahmadi nationals of Pakistan, claimed asylum on arrival in the United Kingdom and were detained from 9 July to 22 October 2013. Their asylum claims were placed in the fast-track procedure and refused. Their appeals through the First-tier Tribunal and Upper Tribunal were dismissed, but permission to appeal to the Court of Appeal was granted. The Secretary of State subsequently granted both claimants asylum, and their appeals were allowed by consent.

The claimants brought consolidated judicial review proceedings seeking damages for unlawful detention. By the time of the hearing, the Court of Appeal had decided R (Detention Action) v Secretary of State for the Home Department, including [2014] EWCA Civ 1634 and [2015] EWCA Civ 840. The issues were whether those decisions could be relied on, whether the fast-track procedure rendered the detention unlawful, whether detention could be justified on an alternative absconding-risk basis, and the period for which damages were recoverable.

1. The claimants were permitted to rely on the second Detention Action decision. The generic fairness of the fast-track procedure had been raised in the original proceedings and in submissions, and reliance on the later decision required no substantial amendment or new factual case.

2. The reasoning in [2015] EWCA Civ 840 applied to the earlier fast-track rules. The relevant timetables and the practical tasks facing representatives were materially the same. The time limits made a fair hearing impossible in a significant number of asylum appeals, and the procedural safeguards did not cure that structural defect.

3. The fast-track rules were therefore systemically unfair and unlawful. They were also unlawfully applied in the claimants’ particular cases. The rushed process prevented adequate evidence-gathering, preparation and consideration of their claims, with the result that their asylum applications were never lawfully determined.

4. Because lawful consideration of the asylum claims would have taken longer than the maximum lawful period of detention pending removal, detention could not be justified on the basis that removal was likely within a reasonable period. The alternative assertion that the claimants presented absconding risks also failed. There was no structured risk assessment, and the evidence showed prompt asylum claims, unblemished immigration histories, available accommodation and potential sureties.

5. No part of the 106-day period from 9 July to 22 October 2013 was lawful. The claimants were entitled to substantial damages, including compensation for ill-health, inconvenience, humiliation and distress. The damages were to be assessed by the Central London Trial Centre if not agreed within three months.

The judgment describes earlier immigration appeals and subsequent Court of Appeal appeals in the claimants’ asylum proceedings. Their appeals were ultimately allowed by consent on 28 April 2014. The present proceedings were first-instance claims for damages for unlawful detention.