In the case of R (JM and Ors) v Secretary of State for the Home Department  EWHC 2331 (Admin) Duncan Lewis represented four lead claimants in challenging the legality of the Detained Fast Track (DFT) system. These proceedings concluded on 3 July 2015 with declarations made by Blake J that the DFT operated with a systemic and unacceptable risk of illegality and unfairness in its inability to identify individuals presenting with indicators of potential vulnerability and vulnerability and to recognise when their claims are complex or require further investigation which cannot be suitably conducted in detention under such a truncated timetable.
Following that litigation, the Immigration Minister James Brokenshire announced the suspension of the DFT. The Secretary of State for the Home Department then introduced the Detained Asylum Casework (DAC) team to process asylum claims in detention.
Proceedings in the Administrative Court
The Judicial Review challenge, like JM, was brought as a test case, and the four lead cases were selected as representative of the cohort of approximately 100 other stayed claims, also challenging the processing of their asylum claim in the DAC. A generic challenge was advanced to the lawfulness of the SSHD’s policy ‘Detention: Interim Instruction and Process Map’ (the DII) and the unfairness suffered by the individual claimants as a result of their inclusion in the DAC process. The claimants argued that the SSHD’s decision to detain them solely for the purposes of examining and determining their asylum claims was unlawful. It was also contended that in devising and formulating detention policy, through implementing the DII, the SSHD failed to comply with her public sector equality duty (PSED) under section 149 of the Equality Act 2010 by failing to conduct an Equality Impact Assessment.
Two of the claimants (TH and MNK) were torture victims and had Rule 35 reports obtained whilst in detention raising these concerns. One claimant, ZA, (represented by Wilson LLP) had a complex forced marriage claim and the fourth claimant (TCV) was a victim of trafficking from Vietnam.
In his Judgment dated 7 June 2016 , Mr Justice Cranston accepted that the DII was a policy, (although the SSHD had sought to argue that it was not) but declined to quash it. The Judge rejected the claimants’ challenge to the fairness of the policy and determined that it had the capacity to adapt to the requirements of fairness. The Judge also rejected the submission that the individual claimants, TH, MNK and ZA had suffered unfairness in having their asylum claims processed within the DAC, and rejected their claims for unlawful detention.
In the case TCV, the victim of trafficking from Vietnam, the SSHD conceded that he had been unlawfully detained on the basis of a breach of the SSHD’s trafficking policies. As a result of this concession, Mr Justice Cranston heard no legal arguments surrounding the interplay between the trafficking policies, the DII and detention.
The Judge made a declaration that the SSHD had breached section 149 of the Equality Act 2010 by failing to pay due regard to her public sector equality duty in considering asylum claims in detention, and stated that the SSHD had not taken comprehensive steps to address the protected characteristics encompassed by the PSED and to advance equality of opportunity between persons who share a relevant protected characteristic and those who do not share it.
Proceedings in the Court of Appeal
In the Court of Appeal, the claimants challenged Mr Justice Cranston’s decision to make a declaration, rather than a quashing order, in respect of the SSHD’s failure to comply with the PSED. Lord Justice Beatson and Lord Justice Sales found that Mr Justice Cranston was entitled to use his discretion in deciding the question of relief and that the Court of Appeal should only interfere with that discretion where there is an error of law or approach. Beatson and Sales LJJ found that Mr Justice Cranston made no such error and permission was refused on this ground.
The claimants’ generic challenge to the fairness of the overall policy was also rejected by the Court of Appeal on the basis that the inclusionary criteria for the DII are contained in the well-established Chapter 55 of the Enforcement Instructions and Guidance (EIG) and that the policy was not unfair as a whole.
The Court of Appeal highlighted, however, that there may be ‘aberrant cases’.
What was achieved?
One of the lead claimants, TCV, (represented by Duncan Lewis) was taken into the care of the Local Authority upon his arrival into the UK as an unaccompanied minor seeking asylum. Shortly after, TCV was reported missing by the Local Authority and his case was referred for a formal trafficking assessment via the National Referral Mechanism.
On account of TCV absconding from his placement, and notwithstanding trafficking concerns raised by the Local Authority, the Home Office treated his asylum claim as withdrawn (as opposed to suspended). The Competent Authority issued a negative grounds decision finding that TCV was not a victim of trafficking because he went missing from the Local Authority’s care. On 21 August 2015, in a raid on a nail bar, TCV came to the attention of immigration enforcement officers and was detained. The Home Office refused to release TCV and instead reinstated his claim for asylum to be processed under the DAC, despite concerns raised in respect of trafficking. As a result of an interim relief application to the Court, TCV was released from detention, but was sent back to the nail bar where he was apprehended, despite clear indicators that he would be at risk of being re-trafficked. When this case came to trial, it was conceded by the SSHD and damages are to be agreed.
On 1 August 2016, the day before the permission hearing in the Court of Appeal, the SSHD released a new Policy Equality Statement (PES) on the processing of asylum claims in detention and a new DII policy. The SSHD admitted in Court that this policy was introduced as a result of the litigation and the policy contains some important points which appear to directly stem from the arguments presented in the wider litigation:
“Allegations of torture and other vulnerabilities set out in Chapter 55.10 should be carefully considered before referring a case to the Detained Asylum Casework Team. Where such allegations are supported by independent evidence such as medical records or a Rule 35 report, the case should not normally be referred to the Detained Asylum Casework Team.”
“Once the asylum screening interview has taken place, a caseworker should be in a better position to decide whether it is likely that the individual can be removed within a reasonable time, bearing in mind the nature of the asylum claim and all the circumstances of that individual. Detention should therefore be reviewed by the Detained Asylum Casework Team in accordance with EIG55.8. Particular attention should be paid to any vulnerabilities that have been raised in terms of suitability for detention (see Chapter 55 of the EIG).”
It is important to note that, because of the litigation, this policy was introduced and it is very much hoped that it will have a positive impact on the way asylum claims are processed by the SSHD. Duncan Lewis will continue to seek to identify cases that are ‘aberrant,’ such as the case of TCV which was conceded by the SSHD, and to challenge these on an individual basis.
The Claimants were represented by Stephanie Harrison QC, Shu Shin Luh, Anthony Vaughan and Gráinne Mellon, at Garden Court Chambers. Lead solicitors for the representative claimants were Toufique Hossain and Ahmed Aydeed of Duncan Lewis (for TH, MNK and TCV) and Marcela Navarrete of Wilson Solicitors LLP (for ZA).