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Latest on legal challenge to detained asylum cases

Very useful update from my colleague Shu Shin Luh:

R (Hossain and Ors) v Secretary of State for the Home Department [2016] EWHC 1331 (Admin)

Mr Justice Cranston this week handed down judgment in Hossain & others v SSHD, the test case (with four representative claimants) on the lawfulness of the “Detained Asylum Casework” process established by the Detention: Interim Instruction policy (DII) and the Interim Process Map, which was introduced after the Detained Fast Track was suspended on 2 July 2015. The Interim Process Map was unpublished at the time these proceedings were issued and only disclosed in proceedings, and it is understood, remains unpublished.

Two of the claimants were victims of torture and had rule 35(3) reports obtained during detention. One claimant had a complex forced marriage claim. One claimant was a victim of trafficking.

The claims challenge the lawfulness of the DII policy and the unfairness in the individual claims of including the claimant in the DAC process. The claimants also contended their detention for the purposes of examining and determining their claims in detention was unlawful.

The SSHD’s case at trial was that the DII was not a policy and simply signposted to Chapter 55 of the Enforcement Instructions and Guidance (‘EIG’) which governed detention. The objective is to protect immigration control and deal with cases which are late, opportunistic claims which are likely to be unmeritorious.

Cranston J accepted that the DII was a new policy (rejecting the SSHD’s argument to the contrary) and found that the SSHD had breached s 149 of the Equality Act 2010 in failing to have due regard to her public sector equality duty in considering asylum claims in detention.  This means that she had unlawfully failed, in the exercise of those functions, to have due regard to the need to eliminate conduct such as discrimination which is prohibited by the 2010 Act and to advance equality of opportunity between persons who share a relevant protected characteristic and those who do not share it, etc.  See [157]-[166] of the Judgment.

The Court has been asked to rule on whether these findings mean that the DII should be quashed.  Currently, Cranston J has only agreed to make a declaration as to the breach of section 149: see [182].  The Court will deal with this issue, and other issues relating to consequential relief, shortly, and updates will follow here when the Court has done so.

However, Cranston J rejected the Claimants’ other challenges to the DII based on the unacceptable risk of unfairness inherent in the system [140]-[156]; the failure of the policy framework explicitly to state that fairness was a criterion for the application of the policy [135]-[[139]; and rejected the submission that the individual claimants (whose cases Cranston J had selected as representative of the generic issues) had suffered unfairness in having their asylum claims processed within the DAC, and rejected their claims for unlawful detention: see Hossain [168]-[172], MNK [173]-[176] and Auleear [177]-[180].

In the representative claim of TCV, which raised trafficking issues, the Secretary of State conceded during the course of the hearing he had been unlawfully detained on the basis of a breach of the Secretary of State’s trafficking policies [181]. As such, Cranston J heard no argument around the interplay between the trafficking policies, the DII and detention. TCV’s claim for damages will be transferred to the QBD for assessment if it cannot be agreed.

The Claimants are intending to appeal and have submitted provisional grounds of appeal in advance of hand-down which will be fine-tuned now that judgment has been handed-down. It is understood that this will be dealt with alongside other issues relating to consequential relief arising from the judgment at a later date.

Given the terms of Cranston J’s Order of 5 February 2016, the Claimants’ legal representatives consider that the stay of proceedings in all other DAC claims will remain in force until the Court has ruled on the appropriate relief consequential to the Court’s judgment (the Order said, “All other cases seeking to challenge the lawfulness of the DAC/DNSA process be stayed pending the resolution of the [test cases],” and that permission would not be considered “in any case linked to the DAC cohort that is currently lodged in the Administrative Court Office or is to be lodged in the Administrative Court Office until the above set of cases has been dealt with”).

The stayed cases and any new DAC challenge will now need to be refocussed on the claimant’s vulnerability engaging the protected characteristics in the Equality Act 2010, in addition to the existing procedural fairness submissions directed at the individual’s circumstances (e.g. the need for a medical report, country report, obtaining of documents, translations and other witness evidence etc). As well, consideration will need to be paid specifically to whether there is a ground of challenge relating to unlawful detention in any event, particularly in cases where there is a rule 35, a pending trafficking investigation and / or other features which would not justify continued detention under EIG 55 and / or common law.

In the absence of any further ruling, the interim order of 24 March 2016, which suspended the DAC process for any claimant providing proof issue to the SSHD pending the Court’s decision on interim relief in their case, now ceases to have effect (see Free Movement post here setting out the Order).

The Claimants were represented by Stephanie Harrison Q.C., Shu Shin Luh, Anthony Vaughan and Grainne Mellon. Lead solicitors for the representative claimants are Toufique Hossain and Ahmed Aydeed of Duncan Lewis Solicitors (for Hossain, MNK and TCV) and Marcela Navarrete of Wilson Solicitors LLP (for Auleear).

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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