ABDUL MATEEN OMAR ALI v THE HOME OFFICE

For immigration detention to be lawful under a detained fast-track policy, the decision-maker must make sufficient inquiries to assess whether a fair and sustainable decision can be reached within the permitted timescale. That requires at least an outline understanding of the applicant’s case, including why persecution is feared and what supporting evidence may require investigation or translation.

A policy breach is material where it is capable of affecting the decision to detain. Later evidence may be relevant when assessing whether the claim was suitable for fast-track treatment; the court must not exclude it merely as hindsight. If detention was unlawful, nominal damages require proof that the claimant could and would have been lawfully detained, and that detention would have remained reasonable under the Hardial Singh principles.

The appellant appealed from HHJ Baucher’s decision dismissing his claim for false imprisonment arising from 98 days of immigration detention between December 2014 and March 2015.

His asylum claim had been placed in the Detained Fast Track. His appeal to the First-tier Tribunal was dismissed under the Fast Track Rules 2014, but that decision was later set aside after those Rules had been declared ultra vires. A subsequent appeal succeeded and he was granted asylum.

The appeal concerned the adequacy of the suitability inquiries, the materiality of failures to record and translate documents, the relevance of later evidence, the alternative case on nominal damages, and whether the setting-aside order affected the legality of detention.

1. Grounds 1–3 allowed. The Judge below had erred in assessing whether the appellant’s claim was suitable for the Detained Fast Track. The screening process needed to obtain an outline understanding of why the appellant feared the Taliban. The bare description “Fear of Taliban” did not disclose that he claimed to have provided information to Afghan intelligence and that the Taliban threatened him as a consequence. Those matters were relevant to credibility, risk, possible relocation, corroborative inquiries and the timescale for a fair and sustainable decision.
2. The Judge also applied the wrong test to the failure to identify the documents supplied at screening and their languages. Under Lumba, the question was whether the breach was capable of bearing on the decision to detain by affecting fast-track suitability. It was not answered by examining whether the documents ultimately assisted the asylum claim. The finding that all documents had been translated before the refusal decision was factually wrong.
3. Later evidence was not irrelevant hindsight. Where the complaint was that insufficient inquiries had been made, evidence obtained when the appellant had more time could be relevant to whether the claim was suitable for fast-track treatment, although its weight might be limited by speculation or the passage of time.
4. Ground 4 allowed. Nominal damages required the Respondent to establish that the appellant could and would have been lawfully detained absent the error. The court also had to consider whether detention would have remained reasonable throughout the period and whether removal would have occurred within a reasonable time under the Hardial Singh principles. The Judge had decided only what could have been done and had not addressed the necessary counterfactual.
5. Ground 6 allowed. Setting aside the First-tier Tribunal decision did not automatically make detention unlawful. However, the Judge had applied the wrong test by asking whether the original appeal hearing was unfair. That was the test relevant to whether an appeal decision made under ultra vires rules should itself be set aside, not the legality of detention after the decision had already been set aside.
6. The proper question was whether the dismissed appeal, which had become a nullity, bore on detention in the sense of being capable of affecting the decision to detain. Detention after the dismissal, when the appellant was treated as appeal-rights-exhausted and removal was expected shortly, was potentially unlawful because a pending appeal would necessarily have required a longer period for determination.
7. The counterfactual had to proceed on the basis that the appeal would not have been dealt with under the ultra vires fast-track timescales. It was not necessary to assume that the appeal would have been heard as late as the actual 2016 hearing.
8. Ground 7 dismissed. The finding that the further representations were not received until 17 March 2015 was one that a reasonable judge could reach. Consequential orders, any further trial, damages and costs were reserved for written submissions.

• High Court (Queen’s Bench Division): allowed Grounds 1–4 and Ground 6 to the extent identified; dismissed Ground 7; reserved consequential issues.
• Central London County Court: HHJ Baucher dismissed the false-imprisonment claim by order dated 9 November 2020.