Detention/asylum decision on the two challenges which represent a further round in the contests over lawfulness of aspects of the detained fast track system for the determination of asylum claims and appeals. Toufique Hossain acted as lead Partner on this case and Ahmed Aydeed as lead solicitor.
History of the Case
In 2000, faced with a very large number of asylum applicants, the SSHD introduced a fast track procedure for considering some of their applications: certain applicants were detained for up to 10 days at Oakington Reception Centre to facilitate the expeditious determination of their asylum applications. They were not said to be abscond risks. The House of Lords was satisfied that detention for those purposes fell within the scope of both paragraph 16 of Schedule 2 to the 1971 Act and Article 5(1)(f) ECHR. So far as the former was concerned, "pending examination" in paragraph 16 meant "the period up to the time when the examination is concluded and a decision taken"; see paragraph 22 of Saadi. The lawful exercise of the power did not require the SSHD to show that the examination would not take place because the applicant would run away if not detained, nor that temporary admission was not appropriate. The period of detention had to be reasonable in all the circumstances. At paragraph 24, Lord Slynn said:
"There is obviously force in the argument for the claimants that if there is no suggestion that they might run away then it cannot be strictly necessary to detain them as opposed to requiring them to comply with a fixed regime enabling detailed examination to take place. This, however, ignores the reality—large numbers of applicants have to be considered intensively in a short period. If people failed to arrive on time or at all the programme would be disrupted and delays caused not only to the individual case but to dealing with the whole problem. If conditions in the centre were less acceptable than they are taken to be there might be more room for doubt but it seems to me that the need for speed justifies detention for a short period in acceptable physical conditions as being reasonably necessary.
This does not mean that the Secretary of State can detain without any limits so long as no examination has taken place or decision been arrived at. The Secretary of State must not act in an arbitrary manner. The immigration officer must act reasonably in fixing the time for examination and for arriving at a decision in the light of the objective of promoting speedy decision-making."
So far as Article 5(1)(f) was concerned, it was not necessary to show that the applicant was seeking to evade immigration control by his entry; nor was there a test of necessity for the detention in order to inquire into whether or not the asylum claim should be granted; paragraph 36. He expressed no concluded view on whether the removal limb of Article 5(1)(f) was engaged.
The issue thus became whether the detention was unlawful, as a disproportionate, response to the reasonable requirements of immigration control. Lord Slynn concluded:
"In Chahal's case 23 EHRR 413, 466, para 118 the Court of Human Rights said that the lawfulness of detention had to be seen against the substantive and procedural rules of national law "but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness". I do not see that either the methods of selection of these cases (are they suitable for speedy decision?) or the objective (speedy decision) or the way in which people are held for a short period (i.e. short in relation to the procedures to be gone through) and in reasonable physical conditions even if involving compulsory detention can be said to be arbitrary or disproportionate. The evidence of Mr Martin gives strong support to the view that it was appropriate, in the light of the Secretary of State's experience, for the Secretary of State to adopt the Oakington policy and that other alternative methods would practically not be effective.
46. The need for highly structured and tightly managed arrangements, which would be disrupted by late or non-attendance of the applicant for interview, is apparent. On the other side applicants not living at Oakington, but living where they chose, would inevitably suffer considerable inconvenience if they had to be available at short notice and continuously in order to answer questions.
It is regrettable that anyone should be deprived of his liberty other than pursuant to the order of a court but there are situations where such a course is justified. In a situation like the present with huge numbers and difficult decisions involved, with the risk of long delays to applicants seeking to come, a balancing exercise has to be performed. Getting a speedy decision is in the interests not only of the applicants but of those increasingly in the queue. Accepting as I do that the arrangements made at Oakington provide reasonable conditions, both for individuals and families and that the period taken is not in any sense excessive, I consider that the balance is in favour of recognising that detention under the Oakington procedure is proportionate and reasonable. Far from being arbitrary, it seems to me that the Secretary of State has done all that he could be expected to do to palliate the deprivation of liberty of the many applicants for asylum here."
The Claimant's case
Ms Lieven QC for the Claimant submitted that the system as it operated created an unacceptable risk of unfairness for asylum seekers, and that detention in the DFT was unlawful on the more general basis that detention in it was unreasonable, arbitrary and disproportionate. There was a high degree of overlap between the factors supporting the two grounds, factors which she said had changed from those accepted as lawful in earlier decisions. The EHRC supported these submissions, contending that the policy no longer eliminated "all risk of arbitrariness", and that the policy was no longer compatible with Article 5 ECHR. The changes and their effects were summarised as follows.
TN is a national of Vietnam who, when she was encountered in December 2003, claimed to have arrived recently in the UK. She claimed asylum in January 2004, but absconded, and her claim was refused for non-compliance with procedural requirements. She was encountered again in 2007, arrested, gave a false name, was released but again failed to comply with reporting requirements. In May 2011, she presented herself to the authorities, and made a further claim for asylum based on her fear of religious persecution in Vietnam as a Catholic, and a claim for leave to remain based on seven years' residence. She also said that she was working in a nail bar and looking after her employer's children all without pay. She was detained, her fresh claim was refused in 2012 and she was removed to Vietnam.
She returned to the UK illegally in around May 2014, and was arrested working illegally in a Rotherham nail bar on 30 July 2014. At her immigration interview, she said that she had no money or passport, and that a friend had paid an agent to enable her to travel to the UK. She then claimed asylum, denied that she had been tortured, and was placed in the detained fast track after screening on 2 August 2014. She was not asked about trafficking. She asked to be released on the grounds that she had recently miscarried and was in distress, but this was refused. The Detention Centre GP described her as physically fit and mentally stable.
At the substantive asylum interview on 12 August 2014, she said that she had been tortured by Vietnamese authorities to explain what happened to money collected at the church where she cleaned. She had scarring. She was not referred for a R35 report. The basis of her claim was that, on return, she would be mistreated by the Vietnamese authorities, just as her mother had been for saying "bad things about the government", and she was also suspected of involvement in the missing money. This had been the basis for the further submissions refused in 2012, and which had led to her return to Vietnam. She said that, on return there, she was kept at a detention centre, and was questioned about the money; she refused to sign a confession and eventually escaped. Her brother and a friend arranged for her to come to the UK in October 2013. It was on this journey that she was repeatedly raped by a "western man" involved in bringing people to the UK. This had caused the pregnancy from which she had recently miscarried. She was not referred to any specialist body such as the Medical Foundation.
US is a Pakistan national who entered the UK, aged 24, in December 2009 with leave to remain as an accountancy student, later extended to 30 October 2014. He returned to Pakistan for about 6 months, re-entering the UK in January 2012. His leave was curtailed on 30 March 2014 to expire on 28 May 2014. He was served with notice of intended removal on 1 April 2014. The Home Office interview of 1 April 2014 records US as saying that he is not fit to be interviewed, and was confused and worried. Two days earlier he had been arrested for a suspected fraud - not pursued. He answered the questions at some length, saying that he was happy here and, ambiguously, that when he thought of Pakistan, it made him want to cry; he had always wanted to make his future here. There is no mention of any difficulties in Pakistan, though there did not appear to be any specific question about that. He was interviewed for Emergency Travel Documents on 16 April, and on 24 April 2014 was served with Removal Directions for 30 April 2014.
He sought asylum by a letter dated 25 April 2014. At his asylum screening interview on 1 May 2014, he said that he could not return to Pakistan because his ex-girlfriend's mother was trying to kill him. After screening, he was placed into the detained fast track process. On a number of occasions, he complained that he was in poor mental health, and sought to delay the process; solicitors asked that he be removed from the fast track so that he could gather documents and have them translated.
At his substantive interview on 12 May 2014, he said that he was "absolutely not well," mentally or physically; he was very disturbed mentally and could not proceed. Medical staff had been unable to help and were just ignoring it; he had headaches and could not sleep. But, after speaking to his solicitor who was present, he said that he would continue, saying he obviously had no option, otherwise it would go against him. He was asked if he had any documents: he had asked friends for documents which he had hoped would be there by now and he would forward them should they arrive; these included an FIR filed at the police station, when he was stabbed in the arm, and had gone to hospital. The wound had required many stitches; two fingers had been broken. But he did not know whether the FIR had been filed on his behalf or against him. He had been trying without success to contact his family. He had phoned a friend in Pakistan to check. He had asked anyone going to Pakistan over the last five years to see if they could find out about his documents. A friend had come across a document showing that his parents had disinherited him, and no longer regarded them as their son. He had also undergone an Islamic marriage to a Czech national living in the UK. The refusal letter came the next day, 13 May 2014.
Subject to any submissions from counsel on the precise terms of the order, the FTR 2005 are ultra vires (the court declared that the FTR 2005 are ultra vires). The court refuses to quash the appeal decisions. I the court quashed the fresh claim decision of 2 October 2015 in the case of TN, and all the fresh claim decisions made in respect of US. The court did not does not quash the NRM "reasonable grounds" decision nor the 20 August 2015 fresh claim decision in TN's case.