TH (Bangladesh) & Ors, R (On the Application Of) v Secretary of State for the Home Department [2016] EWCA Civ 815

[2016] EWCA Civ 815Case No C4/2016/2626; 2627; 2629
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2016] EWHC 1331 (Admin)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Hon. Mr Justice Cranston
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10/08/2016
Before
LORD JUSTICE BEATSONLORD JUSTICE SALES
Between
The Queen on the application of:Applicants(1) TH (Bangladesh)Applicant(2) ZA (Mauritius)Applicant(3) MNK (Pakistan)ApplicantSecretary of State for the Home DepartmentRespondent
Stephanie Harrison QC, Shu Shin Luh and Anthony Vaughan (instructed by Duncan Lewis Solicitors (1st and 3rd Applicants) and Wilsons Solicitors (2nd Applicant)) for ApplicantsLisa Busch QC and Leon Glenister (instructed by Government Legal Department) for RespondentHearing Hearing date: 2 August 2016Further submissions: 4 August 2016
Judgment ApprovedSee Order at bottom of this judgmentLord Justice Beatson :I. Introduction
[1]The applicants, who are to be identified as TH (Bangladesh), ZA (Mauritius) and MNK (Pakistan), apply for permission to appeal against the order dated 15 June 2016 of Cranston J. The judge broadly dismissed generic and individual challenges to the lawfulness of the Secretary of State’s administration of asylum claims by those in immigration detention in her Detention: Interim Instruction and Process Map (“the DII”) and by the Detained Asylum Casework (“the DAC”) process. The DII/DAC and the other guidance replaced the Detention Fast Track (“DFT”) process which was successfully challenged in judicial review proceedings: see e.g. R (Detention Action) v Secretary of State for the Home Department [2014] EWCA Civ 1634, [2015] INLR 372 and R (Detention Action) v First Tier Tribunal [2015] EWCA Civ 840, [2015] 1 W.L.R. 5341 (the challenge to fast-track appeals).[2]The circumstances of the applicants are described in Cranston J’s judgment: see [2016] EWHC 1331 (Admin) at [50] – [86]. Their cases were regarded as test cases and the cases of some 100 other persons were stayed pending the outcome. There appears to have been an understanding that the other cases would be case managed within these proceedings because many of the other claimants were represented by Duncan Lewis and Wilsons, the solicitors who represent the applicants before us.[3]The applicants were not entirely unsuccessful. In his order, Cranston J gave declaratory relief that, for reasons given in [156] – [165] of the judgment, the Secretary of State had not paid due regard to her public sector equality duty under section 149 of the Equality Act 2010 in considering asylum claims in detention, and that the detention of a fourth claimant, TCV, from 21 August – 28 September 2015 was unlawful. Additionally, in the case of ZA not all the claim was dismissed: the judge gave her permission to challenge the Secretary of State’s decision to certify her asylum claim as “clearly unfounded”.[4]TH, ZA and MNK applied for permission to appeal on 28 June 2016. They later applied to add a further ground of appeal, a stay, and, if permission is granted, expedition. In an order dated 14 July 2014 Vos LJ granted permission to amend the grounds and adjourned the applications to an oral hearing before two LJs on notice to the Secretary of State on 2 August.[5]There is a considerable body of material before the court. The appeal bundle is in four volumes, one consisting of the generic evidence. There is an authorities bundle, an unpaginated applications bundle and a skeleton argument bundle. The day before the hearing, the applicants filed a supplementary authorities bundle, adding eight authorities and two publications to the 13 items in their first authorities bundle, and a 13 page note for the permission hearing in part responding to points made by the respondent. The respondent filed a bundle on the afternoon of the day before the hearing. It contained a skeleton argument, a number of policy documents including version 3 of the DII, a Policy Equality Statement dated 1 August 2016 which senior Home Office civil servants state demonstrates compliance with section 149 of the Equality Act 2010, and four further authorities, two of which are also in the applicants’ bundles of authorities.[6]The hearing lasted for almost the whole of the day rather than the two hours for which it was listed, and judgment was reserved. In view of the concerns about the handling of asylum claims in detention, it was right that the permission hearing enabled full consideration of the grounds challenging the dismissal of the generic challenge to the DII. It has also been possible to give full consideration to the grounds on which it was contended that the judge’s approach to the individual cases of TH, MNK and ZA was flawed from the extensive material about their situation before the court and the individual skeleton arguments and the brief oral submissions made on their behalf. For the reasons I give in section V below, notwithstanding the extent of the argument before us and the criticisms of the judge’s reasoning in what were sometimes ingenious submissions, I have concluded that there is no real prospect of a full appeal succeeding.

II. The stayed cases:

[7]Cranston J’s order dated 15 June 2016 affected the cases that had been stayed in the following way. It ordered:
“8. Within 28 days of the date of sealing of this order, the claimants in each of the cases comprising the DII cohort shall either withdraw their claims, or file and serve amended judicial review grounds indicating why they continue to pursue their claim in light of the judgment; the defendant shall have 21 days after that to file an Acknowledgement of Service and/or summary grounds of defence if so advised in response to each set of amended grounds; and those cases in which detention is no longer challenged shall be transferred to the Upper Tribunal; 9. The claims of any claimant in the DII cohort which are not withdrawn, but where the claimant fails to file and serve amended grounds within 28 days of the date of sealing of this order in line with paragraph 8 above, shall be struck out.”
In a consent order dated 11 July 2016 filed in the Administrative Court the time in paragraphs 8 and 9 was varied to be 21 days from 13 July; i.e. a period ending on 3 August, the day after the hearing. At the conclusion of the hearing before us, Ms Harrison QC on behalf of the applicants applied for a further stay until the day after our judgment. The information given to the court about the position of the stayed cases was limited and the lack of particularity, notice, or forward thinking displayed is regrettable, particularly because Ms Harrison accepted that, had we delivered our decision at the conclusion of the hearing, she would also have applied for an extension. Notwithstanding this, given the way the stayed cases have been case managed to date and for pragmatic reasons, we extended time until the day after the judgment in this application is given.

III. The judgment below:

[8]In the context of an application for permission to appeal, I do not consider it necessary to summarise the judgment below. It was full, careful, and well structured. It extended to 183 paragraphs over 47 single-spaced pages. After an introduction, there are sections on the Secretary of State’s policies, the positions of the individual claimants, the generic evidence, and the grounds of challenge. The last of these deals with the judge’s decision on the generic challenge between [128] and [166]. It deals with the judge’s decisions on the challenge based on unfairness in the cases of the individual applicants between [167] and [182]. I deal with each ground of appeal in section V. When doing so I will refer to the material parts of the judgment below that have been criticised.

IV. The grounds on which permission to appeal is sought:

[9]The original application for permission to appeal lists four grounds of appeal. In fact, ground 3 is a portmanteau ground with 11 sub-grounds, so there are in effect 14 grounds, some of which have significant overlaps with others and the submissions on behalf of the applicants reflected this. The Secretary of State’s skeleton argument complains that the grounds are amorphous, wide-ranging and somewhat repetitive. But it does not address the grounds. It responds to what is described as ten themes which are said to be present in the grounds and skeleton argument. The four original grounds are:a. Ground 1: The judge erred in declining to quash the Detention: Interim Instruction as a consequence of his finding that there had been breach of section 149 of the Equality Act 2010 and only granting declaratory relief.b. Ground 2: The judge misdirected himself (at [137] – [139]) in concluding that fairness need not be stated explicitly in a Detained Asylum Casework policy, misconstrued the policy as “operationalising fairness to an extent” when there was a failure to publish the interim process map, and erred in rejecting the submission that the policy failed to meet the requirements of legal certainty and transparency.c. Ground 3: The judge erred in law in finding (at [149] – [156]) that the consideration of asylum claims in detention under the DII/DAC is not inherently unfair. Its 11 sub-grounds relate to what are said to be errors by the judge as to the adequacy of the safeguards for identifying unsuitable cases for consideration within detention, and handling those of individuals in detention. The errors alleged relate to the submission that the judge accepted inclusionary criteria based on presumptions, failed to grapple with the absence of an opportunity to address the assumptions prior to an individual’s inclusion in the DII process, failed to address the fact that the criteria used were not published or made explicit, lack of flexibility, and the impact of lawyers.d. Ground 4: The above errors meant that the approach to the individual cases (see [128] – [134], [170] – [180]) was flawed because there was no fair opportunity for the applicants to address the criteria for inclusion in the DAC.[10]Ground 5 is the amendment permitted by Vos LJ. It is that paragraphs 8 and 9 of the judge’s order were vitiated by procedural unfairness, failure to give reasons, and failure to apply the applicable legal principles in lifting the stay on pending cases without an oral hearing. At the hearing Ms Harrison stated that this ground was advanced on behalf of the claimants in the stayed cases.

V. Discussion

[11]As a preliminary observation, I note that the submissions, particularly those in support of grounds 2 – 4, substantially proceed on the basis that the DII process is simply another iteration of the DFT process with “some marginal change to indicative time frames”: see in particular paragraphs 18 – 20 of the applicants’ generic skeleton argument. The judge dealt with this at various points in his judgment. At [128] – [134], he rejected the contention that the DII process is legally flawed because “DFT-type processes are unlawful under the consent order in R (JM) v Secretary of State for the Home Department [2015] EWHC 2331 (Admin)”. He stated (at [130]) that “on their face, the DFT and DII policies are fundamentally different. The DFT policy was to detain asylum seekers on the sole criterion that their claims for asylum could be determined speedily, even when there was no risk of absconding. Under the DII, chapter 55 of the Enforcement Instructions and Guidance (“EIG”) governs detention and there is a presumption in favour of release unless, for example, there is the specified risk of absconding”. He also rejected the submission that the DII policy is unfair because asylum claims are progressed more speedily compared with the pace for many of those who apply for asylum at the asylum intake at Croydon, and accepted that there can be no arguable objection to timescales which ensure that detention is kept to a minimum with a 28 day overall period, but that these are not hard and fast limits and requests for more time will be considered. What had to be examined was the DII on its own terms, and consent orders in different litigation under different administrative arrangements could not create a binding precedent. I respectfully agree with the judge on that. In any event, while the applicants placed significant weight on the judgment of Ouseley J in the first Detention Action case ([2014] EWHC 2245 (Admin)), it must be remembered that none of the deficiencies that he identified in the DFT process were of themselves unlawful, and that he considered that, as a whole, the DFT was capable of being lawful if those detained were given early access to legal assistance, which is now a feature at the removal centres.

Ground 1

[12]The judge circulated a draft judgment in the normal way and invited corrections. In the draft judgment he gave reasons why he had decided only to make a declaration in respect of the duty in section 149 of the Equality Act which he had found. Nonetheless, in written submissions dated 6 June, the day before the judgment was handed down, the applicants made submissions as to the relief consequential on the finding that section 149 of the Equality Act was breached and asked the court to grant an order quashing the DII policy and Process Map. The judge was not persuaded that he should change his judgment on this point in any material respect, and proceeded to hand down his judgment in final form on 9 June. Following that, apparently after the applicants had provided draft grounds of appeal, submissions were made on behalf of the Secretary of State in relation to the disputed elements of the order, including the judge’s decision not to quash the DII notwithstanding his finding that the Secretary of State was in breach of section 149. The Secretary of State supported his decision on remedy. The Order sealed on 14 June reflected his judgment on this point.[13]At [166] of his judgment, the judge stated that, although non-compliance with section 149 cannot be regarded as unimportant, the Secretary of State had taken important steps relevant to her performance of the public sector equality duty in her statement on mental health in detention, the asylum instructions on sexual and gender identity, and the responses to the 2016 Shaw Report on the Welfare in Detention of Vulnerable Persons. He had described the latter at [47] – [48] and [124]. The judge stated that those steps did not comprehensively address the protected characteristics encompassed by the duty, but that it was not for him to say what more the Secretary of State needed to do. At [183], the judge stated that, in respect of the failure to meet the public sector equality duty, other than a declaration, no further action was needed “given the steps the Secretary of State has taken”.[14]The applicants accept that the court has a discretion in relation to the relief to be given where it has been held that an act or omission, including non-compliance with the public sector equality duty, has been broken. They, however, maintain that the cases in which the court has only granted declaratory relief are ones in which the respondent public authority had not disputed the need for an EIA and had concluded it prior to the hearing in the Administrative Court, although not prior to the decision. Ms Harrison submitted that, in a case such as this concerning a policy which engaged fundamental rights of liberty, the breach of section 149 was not merely technical. She argued that the judge had not recognised that the ordinary position is that a quashing order should follow a finding of breach of section 149, and that it is only in an exceptional case that a declaration may suffice. She also submitted that the retrospective compliance with the duty, the day before the hearing of the application for permission to appeal, does not justify not quashing the DII. The EIA produced now cannot benefit the applicants in these cases or the cases that have been stayed behind their claims. She argued that there is a real prospect of success on this ground, and that it raises a point of general importance which cannot be dismissed at this stage but deserves a hearing before the Full Court.[15]Ms Harrison recognised that, if there was “no point” in quashing or that quashing would not lead to a different decision, an after-the-event equality assessment may suffice: see R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWCA Civ 1139, R (Hottak) v Secretary of State for Foreign and Commonwealth Affairs [2016] EWCA Civ 438 and Secretary of State for Communities and Local Government v West Berkshire District Council [2016] EWCA Civ 1441. She, however, submitted that this was only so exceptionally.[16]Considerable reliance was placed by Ms Harrison on the decision of this court in R (C (a Minor)) v Secretary of State for Justice [2008] EWCA Civ 882, [2009] QB 657 and the references in it (at [55]) to the rule of law and proper administration. That was a case about a challenge to rules in delegated legislation concerning the use of physical restraint in secure training centres. The Divisional Court held that the rules were unlawful on procedural grounds but that it would not be appropriate to quash the rules because when Parliament made the rules it was aware of the lack of consultation and because a wide ranging review of the issue had been commissioned and was due to report. Although this court overruled that and decided that the proper course was to quash the rules, I do not consider the applicants are assisted by the decision. The reason this court approached the matter afresh was because it considered that the Divisional Court had erred in principle about how to approach the matter by mistakenly relying on the Parliamentary debate and in regarding the prospective wide ranging review as reasons for not granting relief. It was because of those errors that this court had to make up its own mind as to the proper relief to be given. It is no authority for the proposition that absent such an error this court must make up its own mind as opposed to reviewing the exercise of discretion at the remedial stage by the first instance judge.[17]I have concluded that, although the court must scrutinise decisions made by a public authority at the same time as it is resisting an application for permission to appeal particularly carefully and with a sceptical eye, permission should not be given on this ground. This conclusion is not based on the new EIA presented by the Secretary of State, but follows from the usual considerations that the question of relief is a matter for the discretion of the court at first instance and, absent some error of law or approach, this court will not interfere with such exercise of discretion. Notwithstanding the importance of the duty in section 149, I do not consider that there should be a different approach to an EIA prepared after the relevant decision. I also do not consider that it is necessary for a judge explicitly to state that it is only in an exceptional case that a declaration may suffice. In Hottak, Burnett LJ did not so state and this court held there was nothing wrong with his approach.[18]In this case the judge carefully, albeit briefly, considered what remedy to give. He had the benefit of submissions on behalf of the applicants before handing down his judgment. It is not suggested that he misstated the test. He was entitled to take account, as he did, of the fact that, although the Secretary of State had not comprehensively addressed the section 149 matters, she had taken important steps relevant to the performance of the public sector equality duty, and that her omission at the date of the judgment to comply comprehensively with it made no difference to the lawfulness of her conduct with respect to the applicants. Thus, as in R (JH) v Secretary of State for Justice [2015] EWHC 4093 (Admin), he concluded that the applicants had not suffered any loss as a result of any non-compliance by the Secretary of State with the duty. The applicants maintain that all three applicants have protected characteristics, in the cases of TH and MNK, mental illness, and in the case of ZA a claim based on being a woman at risk of gender based violence and that this had been argued. I, however, accept Ms Busch QC’s submissions that the judge’s approach reflected the principally abstract and generic way the case had been put and the fact that no evidence had been put before him as to what difference, if any, an EIA would have made to individual cases.

Ground 2

[19]It is submitted that the judge erred in rejecting the argument that the DII policy was unlawful because it did not contain an explicit and express statement of fairness as one of the criteria, indeed (see appellants’ note, paragraph 21) “the overriding criterion” for the application of the policy. It had been explicitly stated in the DFT which, notwithstanding that, had been held to be unlawful. Ms Harrison relied on statements by Lord Dyson in Lumba [2011] UKSC 17 at [34] – [36] and Sedley LJ in R (Refugee Legal Centre) v SSHD [2004] EWCA Civ 1481 at [18] – [19] and [23].[20]Ms Harrison relied in particular on the failure to publish the interim process map, which she had recognised (at [39]) was to be used to provide additional guidance to caseworkers, and what she described as the “late, opportunistic and unusually weak claims” inclusionary criterion she derived from Alison Samedi’s statement adduced on behalf of the Secretary of State. She argued that, without knowing that asylum cases were being presumed at the outset to be opportunistic and weak because of their timing, the applicants were deprived of the opportunity of making representations to rebut this. She relied on the judgments of this court in JT (Cameroon) [2008] EWCA Civ 878 at [19] – [21] and JB (Jamaica) [2013] EWCA Civ 666 at [30], where Pill and Moore-Bick LJJ respectively stated that timing of an asylum claim does not, of itself, say anything about the inherent merits of the claim but is a factor to be taken into account in the context of all the evidence.[21]Ms Harrison also submitted that the judge erred in finding that it was clear from the terms of the DII that the overriding criterion was the overall legality of the period in detention. She argued that the correct approach was to focus on the impact of detention on the fairness of the asylum procedure and the ability of an applicant to fairly advance his or her claim. To this extent, she maintained, contrary to the judge’s statement at [139], that fairness was not “operationalised” by the continual review requirement.[22]My starting point is that the history of procedural fairness shows it to be the result of implying into broadly-phrased powers and procedures the requirements of procedural fairness reflected in the principles of natural justice and, since the enactment of the Human Rights Act 1998, the duty of the court where possible to construe such powers, if necessary by reading them down, as compatible with the Convention rights. It is in that context and in that sense that it can be said that procedural fairness is, as the judge stated at [139], a well-established principle ingrained in public administration. As to the authorities relied on by Ms Harrison, all that can be derived from Lumba is that a person affected by a policy needs to be able to make informed and meaningful representations to the decision-maker. What needs to be published is that which the person in question needs to know in order to guarantee a fair procedure, rather than an express criterion that the decision-making process itself must be fair.[23]As to the Refugee Legal Centre case, that concerned flexibility in dealing with claims. The concern of the court was (see [17]) that a caveat on “compromising the integrity of the system” may have operated as a block on flexibility. What was missing in that case was a clearly stated procedure providing for flexibility and there is no suggestion in Sedley LJ’s judgment that what is required is that fairness itself be expressly stated as a criterion for decision-making. The test in that case was (see [6] and [23]) whether the system provides a fair opportunity for asylum seekers to put their cases, not whether the policy explicitly states this. It was also stated (at [23]) that, provided the procedure is in fact operated in a way that recognises the variety of circumstances in which fairness will require an enlargement of the standard timetable, the system, in that case at the Harmondsworth Immigration Removal Centre, was not inherently unfair. It is true that Sedley LJ stated (at [23]) that “a written flexibility policy to which officials and representatives alike can work will afford a necessary assurance that the three day timetable is in truth a guide and not a straitjacket”, but it is clear that the court did not state that to be a necessary requirement. Indeed, although there was no such written flexibility policy, in that case the court concluded that the way the system in fact operated demonstrated the flexibility that was needed and therefore that it was not inherently unfair and unlawful.[24]In this case, the judge in fact considered how the system in the DII and process map operated and whether it operated fairly. He explicitly referred to the need for caseworkers to keep under review the time it is likely to take to make a decision and to the terms of paragraph 24 of the policy: see [139]. It is clear that other parts of the policy, for example paragraphs 13 and 14 referred to in Ms Harrison’s generic skeleton argument at paragraph 36, provide for reviews where there may be a significant change in circumstances, and the need to pay particular attention to vulnerability.[25]As to the criticism that the judge did not address the submissions that the Interim Process Map was unlawful and unfair because it was not a published policy until 1 August 2016, this point was not pleaded, and is not in the applicants’ skeleton below. It only appears to have been raised in Annexes C and D to their reply submissions and in their reply speaking note, and in the latter in a different context, the question of a breach of section 149 of the Equality Act 2010: see volume 1, page 243 at paragraph 13. In these circumstances, it is understandable that the judge did not make a finding on the question of whether the map should have been published. No application was made for permission to amend the grounds of claim to take this point and it was raised so late that the Secretary of State had no fair opportunity to deal with it. Moreover, the generic grounds do not contend that any of the applicants were disadvantaged by the failure to publish the map, or that they might have advanced their asylum claims differently had they been aware of its contents. I do not believe that this point goes anywhere.[26]The argument that there was a hidden criterion for inclusion with detention under the DII of “late, opportunistic and unusually weak claims” arises from a statement in Alison Samedi’s witness statement describing a characteristic of some or many of the claims being dealt with in detention. For example, TH had been in the United Kingdom for 15 years before claiming asylum 10 days after he was detained. MNK had been in the United Kingdom unlawfully since 19 November 2008 before claiming asylum three days after being detained. It does not follow that this was a hidden criterion. That such claims exist and will tend to fall within the scope of the DII regime is part of the Secretary of State’s rationale for setting up this regime, but this does not make it a criterion for inclusion in the regime that a particular claim is late, opportunistic or unusually weak.[27]The criteria for inclusion in the regime are in fact contained in the DII, which states that it is governed by chapter 55 of the EIG. In this, as the judge recognised at [130], it differed significantly from the first DFT Policy, where detention was enabled simply because it was assessed that claims for asylum could be decided expeditiously, even where the individual concerned posed no risk of absconding.[28]The policy in chapter 55 of the EIG and the five reasons set out in it for when detention may be appropriate within the Hardial Singh principles (see [1984] 1 WLR 704) have not been challenged. As the judge stated at [127], the DII is a relatively small piece of asylum policy. The judge carefully described the other components of the policy earlier in his judgment, including screening and gatekeeping functions: see [7] – [15] and [34] – [40]. He showed the way the DII operates together with the EIG, rules 34 and 35, and the Medico-Legal Report Policy, so that those who cannot have their claims considered and determined in detention will either not be detained in the first place or will be released from detention once the relevant features of their cases come to light. Since there is power to detain under the policy in chapter 55 and within the Hardial Singh principles, it is not a valid criticism of the DII system that some information about a person who has already been lawfully detained will not come to light until the screening or even the full interview.[29]For these reasons, I do not consider that permission should be given on ground 2.

Ground 3

[30]It is submitted that the judge erred in law in a number of ways in finding that the consideration of asylum cases in detention under the DII/DAC was not inherently unfair. There are four headline points in Ms Harrison’s submissions. The first is that the judge erred in relying (at [152]) on statistics relating to people who are not allocated to and being processed under the DII/DAC process and in ignoring that, on the Secretary of State’s own figures, only 0.92% of those who claimed asylum in detention were released following the screening interview. The second is that the judge erred in relation to rule 35 and the Shaw Review because he did not consider the review’s recommendation that the Secretary of State should immediately consider an alternative to rule 35 because it did not protect vulnerable people who find themselves in detention, a position identical to that found in the first Detention Action case and, in effect, acknowledged in the consent order made in the JM litigation on 3 July 2015. The third is that the judge’s reasoning and approach to the evidence was inconsistent. While rejecting the evidence on behalf of the applicants as not relating to “the full run of cases”, he accepted evidence on behalf of the Secretary of State as to flexibility which related to a period of time after the applicants had been released from detention and after 5 February 2016, when the cases of these applicants were listed as test cases. The fourth is that the judge erred in concluding (at [133] and [155]) that the presence of lawyers at an early stage eliminated the risk of unfairness.[31]My starting point in considering these submissions is to note the high threshold that has to be overcome in successfully contending that an administrative process such as DII/DAC is inherently unfair. The judge’s summary of the decisions (at [140] – [143] and [146]) was not criticised. The test that emerges from, in particular, the Refugee Legal Centre case and the judgment of Lord Dyson MR in R (Detention Action) v First Tier Tribunal [2015] EWCA Civ 840, 2015] 1 W.L.R. 5341 at [27] is:-(a) In considering whether a system is fair one must look at the “full run” of cases that go through that system,(b) A successful challenge to a system on grounds of unfairness must show more than the possibility of aberrant decisions and unfairness in individual cases,(c) A system will only be unlawful on the grounds of unfairness if the unfairness is inherent in the system itself, and(d) The core question is whether the system has the capacity to react appropriately to ensure fairness.[32]With regard to Ms Harrison’s submissions about the statistics and evidence relied on by the judge, I have concluded that, in view of the high threshold and the need to look at the “full run” of cases, the judge was entitled to assess the system by looking at all the safeguards, including those that are designed to prevent inappropriate cases being taken into the DII/DAC process in the first place. The judge considered all the evidence put forward on behalf of the applicants and on behalf of the Secretary of State. He stated (at [151]) that, notwithstanding Sedley LJ’s view in the Refugee Legal Centre case at [14] about the evidence of claimants’ representatives, he did not discount their evidence as unhelpful, and also referred to the evidence of the foundations. He concluded, however, that the evidence adduced on behalf of the applicants “simply [did] not match the weight of the evidence the Secretary of State has produced for the full run of cases when asylum claims are made and applicants are in detention”. Essentially, this part of the submission seeks to revisit the judge’s factual findings in a way that is simply impermissible in the appellate process absent any arguable error of law or issue of principle about the approach to the evidence. There is, in my judgment, none here. In particular, in assessing the claimants’ contention that the small number of people released from detention when in the DII system showed that it must be inherently unfair, the judge was entitled to have regard to all the safeguards available for the full run of cases in the asylum system as a whole which would prevent large numbers of inappropriate cases from entering the DII system in the first place.[33]I turn to the limb of Ms Harrison’s submissions concerning rule 35 and the Shaw Report. First, it is important to note that, at [153], the judge relied on more up-to-date figures. Secondly, the criticism is, in reality, also a disagreement with his factual findings. Moreover, this submission overlooks the fact that the rule 35 process is one of the features which are intended to safeguard the fairness of the system by identifying those who have or may have been tortured. The rule 35 process has general application and is not confined to the DII system. In assessing whether the rule 35 process is capable of operating in an effective way the judge was, in my view, entitled to conclude that the figures did not evidence unfairness over the whole run of cases.[34]Finally, there is the criticism of the judge’s conclusion about the impact on fairness of the fact that those in the system have access to lawyers under legal aid at an early stage. It was argued that the judge erred because interim relief in the cases before the court was only necessary because the Secretary of State had refused to suspend the process and continued to oppose the claims made. That argument overlooks three points. The first is that such points about particular individuals would show only what Lord Dyson described as “aberrant cases” and “unfairness in individual cases”, which is insufficient to show the system itself is inherently unfair: see [156]. Secondly, it overlooks the fact that the judge in fact found that the detention of each of the three applicants was lawful up to and as at their respective release dates. I deal with the way he considered of the individual claims under appeal ground 4. Thirdly, the criticism fails to face up to the importance of access to lawyers at an early stage for securing overall fairness within the DII regime: see [155]. This is a feature which distinguishes the DII regime in a fundamental way from the previous DFT regime.[35]For the reasons I have given, I do not consider that an appeal on ground 3 would have a real prospect of success. I also do not consider there is a compelling reason for an appeal to the Full Court, particularly after the extensive hearing before my Lord and myself. It is true that there are some 100 cases stayed behind the test case claimants, but it has been open to them to show why their individual cases differ, do not rely on the rejected generic grounds, and should proceed notwithstanding Cranston J’s decision. It remains open to them to do so, albeit within what is now a tight timetable.

Ground 4

[36]It remains to consider the individual cases. Ms Harrison submitted that the judge’s approach to the individual cases was flawed by the generic errors of law. She also submitted that, for the reasons developed in the individual skeleton arguments, in all three cases there was no fair opportunity to address the criterion for inclusion in the DII/DAC, and no consideration of the impact on the fairness of processing the individuals’ claims in the DII/DAC. Moreover, without the intervention of the court which led to their release they would have been denied the opportunity to put their claims with supporting evidence to show that they had meritorious claims for asylum despite what she described as adverse assumptions drawn about the timing of their claims.

TH (Bangladesh)

[37]The judge set out the facts in TH’s case at [50] – [61] and his conclusions at [168] – [172] of his judgment. It is not suggested that the Secretary of State was not entitled to detain TH on 20 September 2015 after he was encountered. While the point is not conceded, it was not positively argued that the Secretary of State acted unlawfully in including TH in the DII/DAC process on 14 October 2015. The issue is whether the judge arguably erred in concluding that the Secretary of State was entitled to maintain TH’s detention under the DII/DAC process after his screening interview on 20 October 2015.[38]The first limb of the written submissions on TH’s behalf argue that the judge erred in not concluding that the factors I list below should have alerted the Secretary of State to the need to release TH.(a) TH’s screening interview had been postponed from 19 to 20 October because he was vomiting and not fit to attend it.(b) In his interview, TH stated that he had had back pain and that when he was in Kuwait he was beaten by a soldier and a bone in his back was broken, and that he had sleeping problems.(c) The skeleton argument states that TH had stated that he had been involved in a “demonstration against” the Bangladesh government, although the document referred to in fact states “he was involved in a political meeting with the BNP”.(d) TH is also recorded as stating that the present government, presumably in Bangladesh, will want to kill him, and that an arrest warrant for his involvement with the political meeting had been served on him and was in his party office in Bangladesh.(e) TH is also recorded as stating that he intended to have additional documents sent from his home country, but it would take four or five days to do so, and that he had some physical problems or medical conditions and would like to be released.(f) There are notes dated 21 and 26 October respectively recording TH as stating that he had numerous medical conditions and was finding it hard to manage in detention and requesting a rule 35 assessment.[39]A pre-action letter was sent and judicial review proceedings were issued respectively on 28 and 30 October, referring to the arrest warrant in Bangladesh, the attack on him in Kuwait, and his detention, and stating that TH was a victim of torture and vulnerable, and therefore unsuitable for detention. It is submitted that the judge erred in apparently directing himself that the only relevant policy was that in chapter 55.10 of the EIG and not considering whether, in the light of all the factors to which I have referred, the Secretary of State should continue to proceed on what the skeleton argument describes as the rigid presumptions underlying the DII policy. It is also said that the judge failed to direct himself that the overriding question was whether TH would have a fair opportunity to present his asylum claim within the DII process in view of his mental health difficulties and need to acquire evidence, and that the judge irrationally proceeded on the basis that TH needed to have complained about torture in Bangladesh as opposed to in Kuwait before the Secretary of State could be required to release him.[40]The second limb of the individual application on behalf of the TH is that the judge’s approach to the rule 35(3) report was flawed in a similar way to that about the information that had emerged at the screening interview and thereafter.[41]Essentially, these criticisms are largely dependent on the generic grounds which, for the reasons I have given, I have rejected. Taken solely at the individual level, they are submissions that the judge erred in finding that the Secretary of State had not acted irrationally in her approach to the claim at the different stages of the process. There was, as the judge stated (at [171]) nothing about torture in Bangladesh in TH’s rule 34 examination when he first claimed asylum, in his screening interview, or in the letter before claim from Duncan Lewis on 28 October 2015. The timescale within which TH said he could get the documents from Bangladesh was not such as to preclude continuation within the DII process. The mere fact that he claimed to have been beaten in Kuwait and to have medical problems did not of itself mean that the requirements of chapter 55.10 were no longer met.[42]It is significant that, even after it was accepted on 3 November 2015 that the rule 35 report was independent evidence of torture, a detention review concluded that detention could be maintained under chapter 55.10. The judge concluded that the reasons in that and subsequent reviews could not be regarded as unlawful. That is not challenged in the skeleton argument save that it is submitted that the Secretary of State had applied the wrong test by maintaining detention on the basis that there were exceptional circumstances as opposed to the very exceptional circumstances required by chapter 55.10. It is, however, important that the judge applied the correct test. There is no real prospect of success on appeal in relation to the individual application made on behalf of TH and no other compelling reason to grant permission.

MNK (Pakistan)

[43]The judge set out the facts in MNK’s case at [62] – [74] and his conclusions at [173] – [176]. MNK had been unlawfully in the United Kingdom since 19 November 2008. He was detained on 28 September 2015 and claimed asylum, and he was allocated to the DII/DAC process on 1 October 2015. His claim to asylum relates to a fear of a real risk of serious ill-treatment by reason of his membership of the United Kashmir People’s National Party. He claims to have been kidnapped, tortured and beaten by Pakistani authorities as a result of his political activities. The judge described his immigration history as unattractive and his asylum claim as falling into the category of late, opportunistic claims designed to thwart removal. In his screening interview on 19 October 2015, MNK made no allegations of torture and revealed no vulnerabilities except the stress of being in detention. His substantive asylum interview was postponed for 13 days to enable him to get documents from Pakistan, which he said supported his claim. The judge stated that the refusal of further applications to postpone the interview were justified because there was no indication as to what documents MNK was attempting to obtain. Without knowing that it was not possible for the Secretary of State to judge whether his claim was potentially complex and therefore no longer suitable for consideration in detention.[44]The first part of the submissions on behalf of MNK are, in effect, submissions based on the generic case. Although it is stated that the rule 35 assessment received by the Secretary of State on 5 November 2015 justified re-evaluation of MNK’s presence in the DII/DAC process, I consider that the judge was correct in concluding that there was no unfairness in the Secretary of State’s rejection of the report as independent evidence of torture, something permitted under the rule 35 process and the chapter 55 guidance.[45]As to the contention that the judge erred in his handling of the status and relevance of the rule 35 report, it is stated that the judge was wrong in not finding that the respondent treated the rule 35 as constituting independent evidence of torture and that it is plain from the contemporaneous record of the detention review on 6 November 2015 that the Secretary of State had accepted the report as constituting such evidence. The skeleton argument contains a reference to vol. 2B, p.118, but that page contains no information about the detention review or the rule 35 report. The review is at vol. 2, pp.115 – 117. In sections 8 and 14 it is stated that a rule 35.3 torture allegation report was considered and rejected on 5 November 2015: see vol. 2B, p.116. Accordingly, the factual premise on which the judge is criticised and the second limb of the submission proceeds is wrong.[46]Absent acceptance of independent evidence of torture, the premise on which the third submission proceeds is also wrong. MNK had been assessed as a person of medium risk of absconding and, in the absence of acceptance of the rule 35 report as independent evidence of torture, that sufficed to maintain detention. The submission that the Secretary of State had applied the wrong test by considering the “exceptional circumstances” rather than “very exceptional circumstances” justified detention also falls away for the same reason, as the judge observed at [176]. I therefore also reject the individualised aspects of MNK’s application for permission.

ZA (Mauritius)

[47]The history and background to ZA’s case is more complicated that that of the other two applicants. The judge set it out at [75] – [87] of his judgment. His conclusions rejecting her claim of unfairness are at [177] – [180].[48]ZA’s claim to have been the subject of a forced marriage in Paris from which she had escaped and returned to the United Kingdom had been communicated to the Home Office by about the beginning of September 2011: see [76]. At that time, the Secretary of State was reconsidering her refusal of an earlier application for leave to remain to marry ZA’s then partner, who was an EEA national. It was explained that there were many applications for the Secretary of State to consider and, in a letter dated November 2014, the Secretary of State had told an MP who had made representations on ZA’s behalf that her case was of some complexity.[49]The key points that are relevant in this application are that, notwithstanding her claims about the forced marriage, acting with the advice of lawyers, on 5 June 2015 ZA pursued an application for leave on the basis of her private life and the ten-year rule rather than applying for asylum. She did not apply for asylum even after, on 15 June 2015, the Home Office wrote to her advising that any claim for asylum had to be made in person: see [77]. She did not do so, apparently on the advice of her then solicitors, whose advice was later found to be incompetent.[50]In the decision letter refusing to reconsider the application for leave to remain ZA had made in April 2001, which was served at the time of her detention on 20 July 2015, the forced marriage issue is referred to: see [78]. In the section headed “exceptional circumstances”, it is stated that, as the Secretary of State had told ZA on 15 June 2015 that the claim for international protection was an asylum application which had to be made in person at the asylum screening unit in Croydon, and because ZA had not done so, her fear of returning to Mauritius had not been considered. The letter also stated that, as the source of her alleged fear was her family, who were resident in France, there was no reason for her not to return to Mauritius. The decision letter certified her claim as a non-suspensive appeal case because Mauritius is categorised as a “safe country” under section 94 of the Nationality, Immigration and Asylum Act 2002. ZA claimed asylum on 31 July 2015 with the assistance of an immigration officer at Yarl’s Wood IRC.[51]In his decision, the judge stated (at [178]) that, as ZA was legally represented at the material times, the Secretary of State was entitled to assume that she was being competently advised to pursue a claim for leave to remain but not for asylum. Moreover, ZA had been told by the Home Office what she had to do to apply for asylum but did not do it. It was for that reason that the judge considered that her detention on 28 July was not unlawful. ZA was detained for what the Secretary of State reasonably thought was speedy removal. I respectfully agree with the judge. He analysed the detention by reference to the criteria in chapter 55.[52]At the time of ZA’s detention, she was not included in the DII/DAC process. According to the chronology submitted with her skeleton argument, she was only referred to the DII/DAC process on 6 August and was not officially allocated to it until 14 August, the day after her screening interview, although there had been an interim allocation to the DII/DAC process on 11 August. The judge recognised (at [180]) that ZA’s position began to change when she made her asylum claim on 31 July. But even though detention reviews on 4, 6 and 11 August assessed her as having “low” removability, with a timeline of more than three months identified, since her risk of absconding was medium, at that stage the chapter 55 criteria for detention were still met and she had not yet been officially allocated to the DII/DAC process.[53]The reason ZA was accepted into the DII/DAC process was (see [82]) that the view was taken that she only claimed asylum when faced with removal. It is submitted on her behalf that this was wrong because she had in fact been an asylum applicant within the meaning of the EU Qualification, Procedures and Reception Directive since July 2011, presumably on the basis of her letter to HM The Queen. In a context where ZA, then advised by solicitors, had been informed some time earlier as to what she had to do to make an asylum claim, but failed to make such a claim, I do not consider that the Secretary of State was acting unfairly in regarding the asylum claim in the way that she did or that the judge was arguably wrong in so concluding.[54]At ZA’s screening interview on 13 August she explained the nature of her asylum claim and stated that if she went back to Mauritius she feared her family would kill her, but she stated that she did not intend to produce further documents to support her claim: see [81]. On 14 August, when she was allocated to the DII/DAC process, the date for the substantive interview was fixed for 21 August, but (see [81] and [180]) on 17 August when Wilsons’ letter raised the possible need for an expert report about forced marriage in Mauritius it was postponed to 24 August. There was a further postponement until 26 August following a request by Wilsons on 21 August because the expert report was needed. The Secretary of State noted (see [84]) that ZA’s solicitors had been instructed for ten days and that an expert report would have no effect on whether the asylum interview took place. Wilsons had also sought ZA’s release on the ground that her detention was unlawful because her case was being processed at a speed similar to what it would have been in the DFT system, but the Secretary of State declined to release her. In an order dated 25 August 2015, Holgate J ordered that the determination of ZA’s claim in the DII/DAC process be suspended. He did not order that she be released or the interview postponed. After ZA explained at the interview on 26 August that she had not applied for asylum previously on legal advice, it was decided that, given the complexity of her case, she should be released, and she was.[55]Having set out the history in this way, I do not consider that it is arguable that the judge erred in rejecting the submission that the Secretary of State had acted unfairly in refusing to postpone the substantive asylum interview until after the expert report was received. The DII/DAC process recognised the need for reviews of the position of individuals where there was a significant change in their circumstances: see paragraphs 13 and 14, which I have referred to at [24] above. There had been one postponement of the interview. The judge clearly regarded the crucial factor to be the explanation given by ZA as to why she had not applied for asylum previously. That explanation was only given on 26 August. In these circumstances, I reject her application for permission to appeal.

Ground 5

[56]It was submitted that paragraphs 8 and 9 of Cranston J’s order were vitiated by procedural unfairness, failure to give reasons, and failure to apply the applicable legal reasons on lifting the stay on pending cases without an oral hearing. I consider that, given the way the parties had agreed to handle the stayed cases, there is no prospect of success on this ground. First, most of the claimants in the stayed cases were represented by either Duncan Lewis or Wilsons. Secondly, the order making the stay was an order in these proceedings rather than in the other cases. Thirdly, the order made by the judge was a matter of sensible case management which itself provided the other claimants with a fair opportunity to react to the outcome of the test case, and there was no requirement of fairness which meant that he was obliged to give them an opportunity to be heard before proceeding in that way. Fourthly, if there were difficulties of service in the case of any particular claimant or difficulties in contacting them because they had been dispersed, it would be open to them to apply to set aside any strike-out that occurred because their solicitors had not been able to take instructions from them.

VI. Conclusion

[57]In summary, for the reasons I have given, I do not consider that any of the grounds upon which permission to appeal against the judge’s decision on the generic challenge to the DII/DAC process have a real prospect of success. It is important to reiterate that, even if the judge had erred in relation to the way the system had operated in relation to the individual claimants, in view of the high threshold required in order to impugn the system as a whole, for the reasons I have given, that would not have meant that the whole system was unlawful. All it would have meant was that these were cases described by Lord Dyson in the Fast-Track Appeals Detention Action case as “aberrant cases”, or individual cases in which there was unfairness. But that is not the position here. For the reasons I have given, I also consider that the individual grounds of appeal advanced on behalf of TH, MNK and ZA do not satisfy the criteria in CPR Part 52.3(6).[58]These applications should therefore be refused.

Lord Justice Sales:

[59]I agree.

Order:

[1]The Applicants’ applications for permission to appeal, all dated 28 June 2016, are refused.[2]The stay of paragraphs 8 and 9 of Cranston J’s Order sealed on 15 June 2016 is extended only to 4pm on 11 August 2016. Claimants in each of the other cases comprising the DII cohort shall either withdraw their claims, or file and serve amended judicial review grounds indicating why they continue to pursue their claim in light of Cranston J’s judgment and/or the judgment of this Court, by this time.[3]The Respondent shall have until 4pm on 1 September 2016 to file an acknowledgement of service and/or summary grounds of defence if so advised in response to each set of amended grounds filed and served in accordance with paragraph 2 above; and those cases in which detention is no longer challenged shall be transferred to the Upper Tribunal.[4]Each Applicant is ordered to pay the Respondent's reasonable costs of their respective application for permission to appeal. The amount of the costs payable by each Applicant under section 26(1) of the Legal Aid Sentencing and Punishment of Offenders Act 2012 is to be determined. Any request by the Respondent for costs to be paid by the Lord Chancellor to be determined in accordance with regulations 10 and 16 of the Civil Legal Aid (Costs) Regulations 2013.[5]The Applicants’ costs in the application for permission to appeal to be the subject of a detailed assessment in accordance with the Civil Legal Aid (Costs) Regulations 2013 and CPR 47.18 Dated this 10th day of August 2016 BY THE COURT

Order

Case Ref: 2016/2626; 2016/2629; 2016/2627 IN THE COURT OF APPEAL (CIVIL DIVISION) IN THE APPLICATION FOR PERMISSION TO APPEAL BEFORE THE RIGHT HONOURABLE LORD JUSTICE BEATSON AND THE RIGHT HONOURABLE LORD JUSTICE SALES BETWEEN THE QUEEN On the Application of ZA (Mauritius) TH (Bangladesh) MNK (Pakistan) Applicants/ Claimants - and - Secretary of State for the Home Department Respondent/ Defendant ORDER UPON HEARING Counsel for the Applicants and Counsel for the Respondent on 2 August 2016, and considering the Applicants’ further submissions dated 4 August 2016 AND UPON the Order of this Court dated 5 August 2016 extending the stay of paragraphs 8 and 9 of Cranston J’s Order sealed on 15 June 2016 in respect of the cohort of cases challenging the DII, to the extent that time for compliance with paragraph 8 of Cranston J’s Order, as extended by consent order dated 19 July 2016, was further extended until the day after judgment is handed down in the Applicants’ application for permission to appeal IT IS ORDERED THAT:

Cited in 1 later judgment