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

Detention in the Detained Fast Track is lawful only where the case appears suitable for a fair and quick decision. Screening and medical safeguards must operate effectively to identify vulnerability and cases requiring further investigation. A failure to screen, coupled with failure to conduct a mandatory medical examination, may make detention unlawful once the Secretary of State reasonably ought to have recognised that the case was unsuitable for the process. Where the Helen Bamber Foundation confirms that a referred case requires further clinical investigation, the applicant must ordinarily be removed from the Detained Fast Track and released within a reasonable period. Recorded detention reasons and supporting evidence are required when the Secretary of State argues that detention would have continued on other grounds.

The claimant, an asylum seeker from Chad, was detained in the Detained Fast Track from 10 to 28 January 2015. His substantive asylum interview was incomplete on 19 January after he disclosed alleged torture in Libya. His solicitors then sought a Rule 35 report and referred him to the Helen Bamber Foundation, which confirmed that his case required further clinical investigation.

The Secretary of State refused to remove him from the Detained Fast Track and continued his detention. The claimant challenged the lawfulness of the detention, relying on failures to screen him, conduct the required medical examination, identify his vulnerability and respond to the Foundation’s letter. The central issues were when any unlawful detention began and whether detention would nevertheless have continued lawfully under Chapter 55 of the Enforcement Instructions and Guidance.

1. Outcome. The claim was allowed in respect of detention from 19 to 28 January 2015. The claimant was declared to have been unlawfully detained contrary to common law and Article 5 ECHR and was entitled to substantial damages.
2. The purpose of DFT screening is to assess promptly whether an asylum claim is suitable for a fair and quick determination and to identify vulnerable or potentially vulnerable applicants. An earlier asylum screening interview, conducted before the DFT was in operation, was not an adequate substitute. The absence of the required January 2015 screening was a failed opportunity to assess suitability.
3. Rule 34 of the Detention Centre Rules 2001 imposed a mandatory obligation to provide a physical and mental examination within 24 hours of admission. The claimant’s visible scarring made it likely that a proper examination would have identified a possible torture claim. That should have led to consideration of a Rule 35 report and review of his suitability for continued detention.
4. The combined failure of screening and the Rules 34 and 35 safeguards created the unacceptable failure identified in the declarations made in JM and Ors v SSHD. The claimant’s case was not suitable for continued retention in the DFT because it required further investigation. Allowing a reasonable period for identification and release, detention became unlawful on the morning of 19 January 2015.
5. The court did not need to decide the separate HBF issue, but held that, had it been necessary, the claimant should have been released within one day of the letter received on 21 January 2015.
6. The alternative argument that detention would have continued under Chapter 55 was rejected. The asserted risks were not adequately recorded in the detention reviews, and the Secretary of State provided no supporting witness evidence. The court could not conclude that a properly directed reasonable decision-maker would have continued detention.

The claim was stayed for three months to allow negotiation of damages, with transfer to the Central London County Court if agreement was not reached. Costs orders were made against the defendant.