Hameed & Anor, R (On the Application Of) v Secretary of State for the Home Department

A declaration that fast-track asylum rules are unlawful does not, without more, invalidate tribunal decisions made under those rules or make detention automatically unlawful. The lawfulness of the individual decision and any resulting detention must be assessed on the facts of the particular case. The court must distinguish between detention before and after refusal of asylum and the commencement of an appeal. It must assess when, if at all, detention became unlawful, including the applicable detention criteria and any risk of absconding. A finding based mainly on hindsight, or on the generic unlawfulness of the rules, is insufficient.

The respondents, husband and wife, claimed asylum on arrival in the United Kingdom and were detained under the Detained Fast Track process. Their asylum claims and subsequent appeals were rejected, but they were released after judicial review proceedings and were later granted asylum.

The Administrative Court declared the Detained Fast Track process and the Asylum and Immigration (Fast Track Procedure) Rules 2005 unlawful. It also declared the respondents’ detention unlawful throughout the relevant period and awarded substantial damages. The Secretary of State appealed. The central issues were whether the unlawfulness of the rules necessarily invalidated decisions made under them, and whether the evidence established unlawful detention in this particular case.

1. Appeal allowed. The order of the Administrative Court was set aside and the judicial review claims were remitted for a fresh hearing before a puisne judge of the High Court.
2. The judge below erred in treating the systemic unlawfulness of the Asylum and Immigration (Fast Track Procedure) Rules 2005 as necessarily making tribunal decisions under those rules unlawful. The effect of TN (Vietnam) was that the validity of each decision depended on the facts of the individual case. The unlawfulness of the rules did not create an automatic nullity or presumption that every decision made under them was unlawful.
3. The judge also gave DA4 and DA6 an impermissibly broad effect. Those decisions did not establish that a fast-track process, or detention within such a process, was unlawful in principle. In particular, DA4 concerned the appeal-stage position under the relevant policy guidance and did not necessarily govern the initial decision to detain. The approach had to remain consistent with the principle, confirmed in R (Saadi) and Saadi v United Kingdom, that a fast-track process is not inherently objectionable, provided appropriate safeguards exist.
4. The finding that the procedure had prevented a fair hearing in this case was unsupported by adequate analysis. The judge relied substantially on hindsight, failed properly to engage with the First-tier Tribunal’s refusal of an adjournment and with the carefully reasoned determinations of Judges Herlihy and Clive Lane, and unfairly substituted his own assessment for theirs without hearing the oral evidence.
5. The detention issue required consideration at successive stages. The court declined to uphold the finding for only the post-refusal period because the question when detention became unlawful, the detention criteria, and the alleged risk of absconding required a single fact-sensitive first-instance appraisal of the evidence as a whole. The Administrative Court was to decide whether any detention was unlawful, the relevant period, and any entitlement to substantial damages.

• Administrative Court: HH Judge Anthony Thornton QC declared the Detained Fast Track process and the Asylum and Immigration (Fast Track Procedure) Rules 2005 unlawful, declared the respondents’ detention unlawful, and awarded substantial damages: [2016] EWHC 1579 (Admin).
• Court of Appeal (Civil Division): The Secretary of State’s appeal was allowed. The order was set aside and the judicial review claims were remitted for a fresh hearing.