Today, a new case came out from the High Court of Justice Detention Action v Secretary of State for the Home Department  EWHC 2245 (Admin). This case challenges the lawfulness of the policy and practice applied by the Secretary of State for the Home Department (SSHD), in the operation of what is known as the Detained Fast Track (DFT).
Ms McGahey: Court should be very cautious before making Generalisations of the DFT System
DFT is the system for the detention of some asylum seekers, while their asylum claims are determined first by the SSHD, and then while they appeal if the claim is refused. They are detained on the basis that their claim and any appeal can be determined quickly. In summary, Detention Action contends that the DFT system as now operated is so unfair as to be unlawful, and it is unlawful at both common law and as a breach of Article 5 (1)(f) ECHR. This was a general claim, and not one which relates directly to any specific detainee. There was no individual Claimant in this case.
Ms McGahey for the SSHD stated that although there might be individual occasions when the DFT was operated unlawfully, contrary to its terms, the Court should be very cautious before making any general findings that the system was unlawful.
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.
Judge: Some Enter the DFT who should be not have Entered it or should be Removed
The Judge found that the Detained Fast-Track system is unlawful as it is currently being operated, because lawyers are not involved at an early enough stage. In paragraph 195 of the judgement it is stated:
“I have accepted that the basic criterion for entry to the DFT, namely the suitability of the case for a quick and fair decision has not been changed, but the focus on the basic criterion and the lesser focus on specific types of claim, has meant a greater prospect that some enter the DFT who should be not have entered it or should be removed as more of their claim becomes known. As I have gone through the various stages of the DFT process, I have commented on what appear to me to be remediable deficiencies which together fall short of showing that the detention is unlawful or that the process contains so high a risk of an unfair decision that it is inherently unlawful. At each stage, however, it has been the prospective use of lawyers, independent, giving advice, taking instructions having gained the client’s confidence, which has seemed to me to be the crucial safeguard, the crucial ingredient for a fair hearing, whilst maintaining the speed of the process, but which can protect against failings elsewhere, and avoid an unacceptably high risk of an unfair process. I also appreciate that in the RLC case, the Court of Appeal accepted that three days between entry and substantive interview was not inherently unfair.”
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