Given that the right to liberty is accepted by all concerned as being at the very heart of the protection that the courts provide from the arbitrary power of the state, it is perhaps surprising that there is a dearth of authorities on the ambit of Saadi.
In that case, in a split decision, the ECtHR had accepted that detention for reasons that amounted to administrative convenience could be lawful even if not ‘necessary’. The real issue was the legality of the Oakington ‘fast-track’ regime, which allowed for the detention of asylum applicants during a seven day period in which their applications were scrutinised by the Secretary of State in accordance with a structured decision timetable. The ECtHR held that this brought the decision to detain Mr. Saadi within article 5(1)(f) - ‘to prevent his effecting an unauthorised entry into the country’. Whilst underlining that the mere fact that detention was in accordance with a statutory regime was not determinative of its legality, the ECtHR accepted that the detention of seven days ‘was … to enable speedy examination of his claim and a quick decision as to whether to give or refuse leave to enter’ and held it to be lawful.
Since that judgement the fast-track regime has altered to encompass appeals in addition to initial examination and operates at a much accelerated timescale. The question of whether the system as a whole could function fairly was the subject of an unsuccessful appeal to the Court of Appeal in RLC, though the point that the new system extended detention beyond the point at which the SSHD decides whether or not to ‘give or refuse leave to enter’ does not seem to have been taken. The Court of Appeal underlined the need to operate the system flexibly to avoid unfairness.
In the case of MS, the Court of Appeal has granted permission to appeal in a case that may allow fuller consideration of the operation of the Detained Fast-Track (DFT) system.
The appeal to the Court of Appeal
On what basis can appellants within DFT apply to the Administrative Court for relief?
It is open to Appellants to make an application that their case is removed from the DFT. However, there are two immediate difficulties with such applications. Firstly, as a matter of practice, the tight timescale means that such applications are usually adjourned for consideration as a preliminary issue by the Immigration Judge, leaving no real opportunity to challenge any refusal by the IJ. Secondly, the question the IJ must consider in such circumstances is limited to whether the appeal could at that point be justly determined, and not the legality of detention.
It is therefore perhaps surprising that the first question for the Court of Appeal in MS is the decision of Dove QC sitting as a Deputy Judge of the High Court to refuse permission on the basis that it is only in ‘exceptional circumstances’ that the Administrative Court should ‘interfere’ with the decisions of the Tribunal to refuse to take a case out of fast-track; all the more so given that in RLC the Court stated:
‘It was urged on us by Mr Tam that, while one could never guarantee against error in the initial decision-making process, the built-in access to the Immigration Appellate Authority was there to cure any such error … we do not consider that it is a sufficient answer to the issue ... First of all, an applicant is entitled not only to a fair appeal but to a fair initial hearing and a fair-minded decision. Secondly, and perhaps more important, the consequences … may very well not be susceptible of appeal.’
As it is widely accepted that in cases that concern very similar issues - i.e. in cases which raise the question of whether detention under immigration powers is unlawful - the mere fact that a Claimant could have made an application for bail to an IJ does not render their detention legal, there is every hope that the Court will go on to consider the substantive issues in the case.
Can SSHD use the DFT where he is responsible for the delay in considering the claim? Can SSHD justify the detention of any asylum applicant on the basis that their claim is suitable for DFT? Or is the consequent detention unlawful if that decision is irrational?
The Appellant in Saadi was granted TA for three days before detention, but only for a day at a time and he was to report back to his airport of arrival on each occasion.
MS argues that, as he had been on Temporary Admission (TA) for nine months, it can not reasonably be said that his detention was effected in order to ‘prevent his effecting an unauthorised entry into the country’ or that it was ‘to enable speedy examination of his claim and a quick decision as to whether to give or refuse leave to enter’.
Furthermore, in this case SSHD was familiar with the nature of the claim. Indeed, MS had previously been detained for several weeks on the basis that his claim was unarguable. Consequent to an earlier challenge SSHD had withdrawn that decision, agreed that any further decision would be appealable if adverse, accepted that the earlier period of detention was unlawful and paid substantial damages. Nonetheless, one year after his initial claim, MS was detained, initially on the basis that he would have no in-country appeal and then (when it was pointed out that this was a breach of an Order that he had agreed) that it was suitable for DFT. SSHD then proceeded to make a decision on entirely different grounds to justify refusal.
MS argues that the decision to justify his detention on the basis that his case ‘could be decided quickly’ was irrational, especially as the delay was occasioned by the actions of SSHD. (A further year later, his appeal remains undecided).
If SSHD assesses a claim as suitable for DFT contrary to his own policy is there a remedy?
SSHD having refused his claim on an entirely different basis, MS faced difficulties in unexpectedly having to obtain evidence to support elements of the claim SSHD had previously accepted but now for no discernible reason did not. Further, the refusal gave rise to the foreseeable need for an expert’s report. DFT policy states that cases which require further investigation and evidence not likely to be available in the DFT timescale without which a fair decision cannot be made are not suitable for the DFT process.
MS argues that in his case there was a real risk from the outset that the DFT timescale would not allow for a fair decision in his case.
For how long can detention be justified on the basis of administrative convenience?
The appeal of MS was dismissed, but an application was made for reconsideration. Whilst that application was eventually successful and the matter set down for a hearing de novo at which point MS was granted (opposed) bail by an IJ, his detention had by then amounted to seven weeks.
MS argues that the length of his detention on the DFT exceeds the reasonable bounds of detention for reasons of administrative convenience.
Further, SSHD refused a request made after the matter had been set down for reconsideration that he grant TA, seemingly on the basis that to do so would remove the case from DFT.
MS argues that this amounts to detention for its own sake, and therefore that the detention is arbitrary.