The latest judgment in the ongoing litigation around Detained Asylum Cases (DAC) has been handed down in the matter of R (Hossain and Ors) v Secretary of State for the Home Department [2016] EWHC 1331 (Admin).
This was a test case with the Claimants’ asserting they were representative of the issues faced generally in DAC. The individual circumstances of the Claimants’ included victims of torture who had corresponding medical reports (known as Rule 35 reports) and a victim of trafficking. Whilst the Secretary of State for the Home Department (SSHD) conceded in the proceedings that the victim of trafficking had been unlawfully detained it did not make the same concession in relation to the victims of torture.
The test case follows a history of litigation culminating in the Detained Fast Track system for asylum seekers being suspended in July 2015 (see more here). The Detained Fast Track system was replaced by theDetention: Interim Instruction policy (DII) and the Interim Process Map.
The DII is in place, according to the SSHD, to allow for effective immigration control. DII is considered to allow more flexibility in timescales within the DAC process compared to previous systems for DAC. Cranston J summarises the rationale for the policy as ‘if there was no such power to detain, making an asylum claim, no matter how unmeritorious, would be an effective way of frustrating removal [from the UK]”.
In the present case, the Claimants’ asserted that the DII was a ‘new’ policy whilst the SSHD asserted it was more of a continuation of ‘existing’ policies. This is relevant with regards to whether the SSHD had complied with its public law duties. The Claimants’ criticised the DII for its failure to refer to the protected characteristics under the Equality Act 2010. The protected characteristics include disability, gender and sexual orientation and transgender. The Claimants’ highlighted as examples, the complexities in cases of those with mental illness and for victims of sexual violence. These are cases, which therefore may have individuals with specific needs within DAC but which do not appear to have been recognised to allow for appropriate steps to be taken to address them. Cranston J summarises the Claimants’ position that ‘the purported flexibility in the DII time scales does not address the particular needs of protected groups.’Cranston J accepted the Claimants’ position that it was a new policy and that the SSHD had breached s149 of the Equality Act 2010.
The Court is still to decide on whether the DII should be quashed in light of the above and on issues of consequential relief.
The Judgment however, was also critical of the Claimants’ other arguments. For example, Cranston J agrees with the SSHD’s assertion that substantive asylum interviews should not be postponed to obtain Rule 35 reports as the interview itself is an opportunity for claimants to explain their cases at length and further evidence can also be submitted after the interview. Cranston J hints at concerns regarding abuse of the Rule 35 medical reports (see paragraph 54). The claims rejected included that the individual claimants had suffered unfairness for having their claims processed in the DAC process and of unlawful detention. Cranston J found that there may be unfairness in individual cases but the criticisms put forward ‘do not meet the high threshold to demonstrate systematic unfairness in preventing applicants from advancing their claims’.
One suspects the litigation on this process will continue and a further appeal may be forthcoming.