The Detention Action litigation led to suspension of the detained fast track. Charlotte Kilroy explains how such a flawed system survived for so long and how it was finally successfully challenged.
On 2 July 2015, the home secretary announced in parliament that the detained fast track (DFT) would be temporarily suspended. The announcement followed two years of successful legal challenge to all aspects of the DFT process by the charity Detention Action (see box).
The history of the DFT
In March 2000, the government introduced a fast-track system for determining asylum claims at Oakington Reception Centre. Applications for asylum considered as straightforward were to be decided by the Home Office in seven days. Individuals were to be detained solely to facilitate speedy decision-making, even though they posed no risk of absconding. A challenge to the lawfulness of detention for what was termed ‘administrative convenience’ was brought and ultimately lost in R v SSHD ex p Saadi and others  UKHL 41, 31 October 2002.
The fairness of the fast-track system introduced in March 2000 was not raised in Saadi. Those whose applications for asylum were refused were able to pursue appeals under the ordinary process.
This was all to change. Shortly after Saadi was handed down, the Oakington fast-track process started to be used for claims certified as manifestly unfounded under the Nationality, Immigration and Asylum Act 2002, thereby removing their in-country right of appeal. Then, after the Court of Appeal concluded in R (ZL and VL) v SSHD and Lord Chancellor’s Department  EWCA Civ 25, 24 January 2003, that this use of fast track was fair because all appellants needed to do to retain appeal rights was to show that their asylum claims were arguable, a pilot of a new fast-track policy was introduced at Harmondsworth for single men from countries where in general there was believed to be no risk of persecution. The pilot shortened the seven-day decision-making process to three days. In addition, those whose claims were decided in the new fast-track process would, if their claims were refused and they continued to be detained on what are known as general detention criteria (ie abscond risk), have their appeals processed by the immigration tribunals under a new set of procedure rules (the Immigration and Asylum Appeals (Fast Track Procedure) Rules 2003 SI No 801), which curtailed the time between adverse decision and the hearing of the appeal to six days.
The shortened timetable for decision-making, but not the appeals process, was challenged as inherently unfair, in the claim brought by Refugee Legal Centre (RLC). The Court of Appeal (R (RLC) v SSHD  EWCA Civ 1481, 12 November 2004) concluded that the decision-making part of the system was not inherently unfair as long as it was operated flexibly.
The courts’ decisions in Saadi, ZL and VL, and RLC appeared to have settled the question of the DFT’s lawfulness in terms of fairness and the basis of detention. Over the next 10 years, on the strength of those decisions, various home secretaries expanded and altered the DFT in a number of key ways. In particular they applied it to all asylum claims, from men and women, and not just those from countries where in general there was believed to be no risk of persecution.
Detention Action litigation judgments
R (Detention Action) v SSHD EWHC 2245 (Admin), 9 July 2014
R (Detention Action) v SSHD  EWHC 2525 (Admin), 25 July 2014
R (Detention Action) v SSHD  EWCA Civ 1270, 9 October 2014
R (Detention Action) v SSHD  EWCA Civ 1634, 16 December 2014
R (Detention Action) v FTT, UT and Lord Chancellor  EWHC 1689 (Admin), 12 June 2015
Lord Chancellor v Detention Action  EWCA Civ 840, 29 July 2015
Taken together, those changes in DFT operation and policy fundamentally altered some of the premises on which the earlier findings of lawfulness had been based. However, it was not until the Detention Action litigation that the policy of detention in the DFT or the fairness of the process as a whole was again challenged.
The genesis of the litigation
In 2011, the charity Medical Justice was looking at ways of highlighting the ineffectiveness of DC Rules r35, which was designed to ensure victims of torture or inhuman and degrading treatment would not be detained.
T was a 21-year-old lesbian from Uganda. At her asylum interview, at which she was unrepresented, she gave her first full account of her asylum claim. She revealed that, because of her sexual orientation, she had been attacked and burned on her inner thighs with a hot iron. T offered to show the interviewer her scars. The interviewer refused and the next day her asylum claim was refused on the basis that her account was not believed. At her asylum appeal, she explained she had not had time to obtain medical evidence because she was in the fast track; she offered to show the First-tier Tribunal (FTT) judge her scars. The judge also refused; he then rejected her appeal on adverse credibility grounds. She appealed to the Upper Tribunal (UT) on the basis of procedural unfairness because she had not had time to obtain evidence about her injuries. Permission to appeal was refused by both the FTT and UT.
After the UT’s decision, her caseworker suggested she go to healthcare at Yarl’s Wood to obtain a body map of her scars, which she did. The healthcare department failed to produce a r35 report, however, and the home secretary proceeded to take steps to remove T. A last-minute judicial review was lodged, attaching the body map, and Edwards-Stuart J granted an injunction in order to allow her to obtain medical evidence. She remained in detention but subsequently obtained a medical report from a doctor stating that the scar on her inner thigh was ‘diagnostic of’ a burn from an iron.
Medical Justice passed T’s case to Sonal Ghelani at Migrants’ Law Project. It became clear that it was not simply the r35 process that had failed T, and her legal team undertook a detailed examination of the entire DFT system to attempt to identify which elements were most at fault. T’s claim was ultimately conceded, but after receiving detailed advice from counsel, Detention Action agreed to be an NGO claimant.
R (Detention Action) v SSHD (DA1, DA2 and DA3)
The claim against the home secretary was lodged in June 2013. It challenged the fairness and lawfulness of the decision-making stage of the DFT and the lawfulness of detention in the DFT, including pending appeal. The claim did not challenge the vires of the 2005 fast track appeal rules (the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 SI No 560). In addition, a consultation process commenced by the Tribunal Procedure Committee (TPC) in April 2013 might have led to a revision or abolition of the rules. It was, however, an important part of the claim that the appeals process did not provide a safeguard against unfairness earlier in the process.
Detention Action sought to show that the cumulative result of all the failings in the system was inherent unfairness, and thus it was unlawful, applying the test developed in RLC (see above).
In a complex and detailed judgment, Ouseley J went systematically through each of the intended safeguards in the DFT (screening, r35, flexibility), finding that each of them suffered from serious failings but on their own did not lead to unlawfulness.
However, he identified one flaw that he considered tipped the system over the edge into inherent unlawfulness: insufficient access to lawyers and insufficient time to permit them to take the steps necessary to take unsuitable claims out of the DFT. This indicated that if the problem of access to lawyers could be rectified, the system would revert to lawfulness, even though the other flaws in the process remained in individual cases.
On receipt of the judgment, the home secretary took immediate steps to address this particular problem, proposing a minimum of four working days between the time at which applicants were allocated lawyers and their asylum interview. This altered the timetable of the decision-making stage. Detention Action, however, doubted it would be sufficient to eliminate the inherent unfairness. It argued that a temporary suspension of the DFT was necessary so stakeholders could be consulted on how to achieve fairness in the system. The home secretary resisted. Although both Ouseley J and the Court of Appeal (in DA2 and DA3) were unwilling to say the proposed changes would rectify the unlawfulness, they permitted the home secretary to continue operating the DFT, giving Detention Action liberty to apply in the event that the changes did not ultimately bring about improvements.
Next steps after DA1, DA2 and DA3
Detention Action and its legal team adopted a twin approach in its response to the continued operation of the DFT, despite the findings of inherent unlawfulness in DA1.
First, it took a range of steps to assist legal representatives and individuals to bring individual claims. This included circulating template legal arguments at seminars and to email groups that could both explain DA1’s implications and speed up the process of lodging judicial reviews at short notice. Second, it turned its focus to the appeals stage of the DFT. By the time DA3 was handed down on 9 October 2014, the TPC had laid the new version of the fast track procedure rules (the Schedule to the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 SI No 2604, hereafter referred to as the FTR) before parliament. Astonishingly, this version was almost identical to the previous one, with almost no alterations to reflect the widespread concerns about the DFT’s fairness, even those contained in the DA1 judgment.
The appeals stage of the DFT
At the time the new FTR came into force, Detention Action still had an outstanding appeal against DA1. This related to the home secretary’s policy of detaining individuals pending appeal in the DFT. In its judgment (DA4), the Court of Appeal found the policy of detention pending appeal unlawful both because it was not clear enough that individuals would be detained for administrative convenience alone pending appeal and because there was no evidence before the court to justify detention on that basis. The factual justification advanced in Saadi could not be relied on for the appeals stage.
On the day the judgment was handed down, Detention Action wrote a pre-action protocol letter to the FTT and the UT to ask them to suspend the fast-track appeals process. It pointed out that the judgment in DA4 meant those already in the appeals process were detained unlawfully and those who entered it in the future would not have been selected for that process on the grounds of suitability. The FTT and the UT did suspend the process, but only for two weeks. The home secretary had reassured them that all those who could not be detained on general detention criteria had been released, but that she was nonetheless still assessing suitability of appeals for the fast track. On that basis, the appeals process continued to operate. DA4 should have led to the releases of large numbers of individuals who had appeals and therefore an incentive not to abscond, but around 90 per cent of those previously detained continued to be so.
This led Detention Action to lodge a new claim in February 2015 against the FTT, the UT and the lord chancellor, arguing that the FTR were ultra vires and that the tribunals were acting unlawfully in continuing to operate them.
In the meantime, the impact of DA1 was beginning to be felt on the ground. In particular, the extra time given to lawyers meant they were making more referrals to two foundations, the Helen Bamber Foundation (HBF) and Freedom from Torture (FfT), to obtain appointments for medical reports on claims of torture and ill-treatment. Such appointments led, under a policy concession, to the release of individuals from the DFT. HBF could no longer cope with the volume of referrals and wrote to the home secretary to make clear it could no longer offer appointments. It offered, instead, to make preliminary assessments of referrals, so the individuals could obtain appointments from elsewhere. This was refused. HBF, FfT, Detention Action and its legal team, and a group of lawyers from firms that regularly represented claimants in the DFT and from Garden Court Chambers met to discuss a response. That meeting, which was followed by extensive co-ordination and collaboration by lawyers at Duncan Lewis, Garden Court and Doughty Street, led to the lodging of a group of claims by torture and trafficking victims. These claims, which advanced arguments on individual failings and systemic unlawfulness, were granted permission and injunctions. Due to the ramifications for large numbers of claims, an interim consent order was agreed that anyone with an HBF or FfT letter would be released from the DFT. Those claims proceeded towards a substantive hearing in parallel with Detention Action’s claim against the FTT, the UT and the lord chancellor.
Detention Action sought an injunction of the fast-track appeals process in its claim at a hearing on 6 March 2015. The interim injunction was refused, but permission and expedition was granted. A hearing was listed for 19 May 2015. As the arguments that were being raised in the claim against the FTT, the UT and the lord chancellor could be raised in any individual appeal, and should have led to adjournment of that appeal or at the very least to suspension of any removal until Detention Action’s claim was resolved, the charity’s legal team began circulating template arguments that could be raised and organising seminars to spread the word as widely as possible. However, a visit to Harmondsworth on 13 March 2015 by members of Detention Action’s legal team revealed just how difficult it was for legal representatives operating under extreme time pressure and inhospitable conditions to use these arguments.
Nicol J’s judgment in Detention Action’s claim was handed down on 12 June 2015 (DA5). The FTR were structurally unfair: the timescales put appellants at a significant procedural disadvantage in presenting their appeals and that disadvantage was imposed by the defendant to the appeal. Even though he had found the rules ultra vires, Nicol J agreed the lord chancellor’s request to grant a stay on his order quashing the FTR pending appeal to the Court of Appeal. Detention Action appealed the stay on an urgent basis to the Court of Appeal. Permission was granted by Sullivan LJ on 17 June 2015; the full appeal was heard on 26 June 2015. Following questions from the court, the lord chancellor and the home secretary conceded that the stay would have to be lifted.
This meant appeals could no longer be processed under the FTR. Those whose refusals of asylum were given in the DFT would now, as was the case at the time of Saadi, have their appeals determined under the normal appeals procedure.
Meanwhile, the HBF claims (JM, RE, KW and MY v SSHD and FTT (IAC)) were due to be heard the following week. They raised directly the question of whether the home secretary’s changes had remedied the unlawfulness identified by DA1 in the decision-making stage of the DFT. On 2 July 2015, the immigration minister announced that the DFT as a whole would be suspended temporarily; on 3 July 2015, the home secretary conceded in the HBF claims that the DFT had been operating unlawfully for vulnerable or potentially vulnerable applicants. Together with DA1, this meant the decision-making stage of the DFT had been operating unlawfully for years.
On 29 July 2015, the lord chancellor’s appeal against Nicol J’s decision was rejected (DA6) in terms that left no doubt about the unfairness to which thousands of asylum appellants had been subjected over many years. The court’s findings are equally applicable to the 2005 fast track procedure rules, which were, in all material respects, identical, save that the timescales were even shorter. The court refused permission to appeal to the Supreme Court.
Why was this unlawfulness not identified earlier by the hundreds of lawyers and judges who were involved in the DFT’s operation?
First, there was widespread confusion about how the DFT was intended to operate and how it was operating in practice. Its complexity meant decision-makers, including lawyers and judges, were frequently ignorant of how it worked as a whole, yet an understanding of this was essential to appreciating whether fairness was achievable in individual cases. Further, unannounced changes to policy and practice, and a lack of clarity left everyone unclear about the policies that were supposed to be applied, while the speed of the process militated against proper investigation of their meaning.
Second, in normal circumstances, these problems of vires, unfairness, misapplication of policy and lack of clarity would be identified at bail hearings or on appeal and everyone incorrectly assumed that would happen in the fast track, too (see para 15 of RLC). The very speed and structure of the FTR (and of the 2005 rules that preceded them) that rendered them ultra vires made this impossible. In particular, at the substantive appeal hearing, which was also the first time the lawfulness of detention or suitability of an appeal for the FTR (or the 2005 rules) could be considered, judges assumed that generally appeals were suitable for the process (see DA6 at para 44), even though that assessment had never been made by the FTT.
Finally, the speed and structure of the process made it impossible for legal representatives, no matter how competent, to raise matters of principle, such as the lawfulness of policy or of the FTR (and, previously, the 2005 rules) themselves. In the time available, the best they could do for their clients was to apply to transfer them out and if that failed, to prepare a fresh claim (see DA1 at para 192). If they could gather the evidence in support of a fresh claim, this became the basis of obtaining a new right of appeal, rather than a procedural fairness challenge to the first appeal.
It is clear from the above the principal reason why Detention Action’s claim was successful. Spurred by the individual facts of T (which were far from uncommon – see the consent order of 3 July 2015 in HBF) but unconstrained by a DFT timetable, its legal team spent hundreds of hours gathering evidence and analysing the operation of and problems in the DFT process. It was only after this exercise had been undertaken that the way in which the DFT operated in practice began to emerge clearly, along with its key vices. It is not obvious that anyone, even the home secretary, understood the DFT until Detention Action’s claim was brought.
Another reason for Detention Action’s success was focused perseverance. A deep understanding of the DFT and its flaws meant Detention Action could focus its legal challenges accurately and shift emphasis where required.
The third reason for Detention Action’s success was collaboration: success was not its alone, but that of the immigration community as a whole, showing what can be achieved when different organisations pool expertise and resources.