"An applicant may enter into or remain in DFT/DNSA processes only if there is power in immigration law to detain, and only if on consideration of the known facts relating to the applicant and their case obtained at asylum screening (and, where relevant, subsequently), it appears that a quick decision is possible and none of the detained fast-track suitability exclusion criteria apply. DFT/DNSA suitability has no requirements as to nationality or country of origin and no other bases of detention policy need apply (see chapter 55 of Enforcement Instructions and Guidance (EIG)). There is no requirement that an application be late and opportunistic." §2.1.2 states that states that assessment of suitability of a case for the DFT process must take place at the time of referral and "at all stages of ongoing case management within DFT". 34. The criteria for assessing whether a quick decision is possible are set out in §2.2 of the policy. It is stated that the assessment is a fact-specific one and "must be made based on the facts raised in each individual case"
"[a]pplicants whose appeal rights are exhausted or lapse in the DFT process and do not qualify [for any form of leave] will be liable for removal. Any decision to maintain detention pending removal must be in accordance with law and policy, and must be subject to regular review (See Chapter 55 of [EIG]". 37. Section 3 of the guidance sets out the process for referring cases for consideration for the DFT process and describes the screening process and section 5 deals with the operational considerations which may mean that a case which is in principle suitable for the DFT process is not entered into it. The operational considerations in section 5 include the availability of detention space, whether obtaining travel documentation is likely to be a lengthy process, and where there is a legal bar to the removal of the individual because, for example, the individual is from a country to which enforced removals are suspended. One of the sub-sections of §5.2.1 of the guidance has the heading "
“114 The way in which the vulnerable categories unlikely to be suitable for inclusion are considered was of some controversy in this case. Ms Hewitt's contention, with the support of UNHCR's detention guidelines, was that certain groups should not be in the DFT: victims of torture and other serious violence, and if detained, they should receive regular reviews; ……………those with long-term physical, mental, intellectual and sensory impairments should not be detained. This begs two general questions. First, the applicant for asylum may not be willing to reveal these vulnerabilities at the screening stage; indeed that is a common point made by the legal representatives, that time is very commonly required before those who claim to have a basis for international protection in those circumstances are willing to reveal that as the basis for their claim. Second, it assumes that all such claims are true in fact, significant to the claim, make it unsuitable for a quick decision by reason of complexity, and make detention in the DFT unsuitable. 198 It will be for the SSHD to organise the system so that the period of inactivity is better utilised in the allocation of lawyers. If that requires changes to the LAA system, that is for the Government to organise. If that requires further rooms, the same applies. This would then assist in the identification and removal of torture, trafficking and other potentially vulnerable cases, which the screening process is not well equipped to do for the range of cases not now excluded by other criteria, and for which other safeguards do not work, as in the case of Rule 35, or work as they should, in the case of referrals to other bodies. It is those who may be vulnerable applicants, rather than other applicants, to whom this applies because of their potential greater difficulties in presenting their claim fully without greater care and consideration from lawyers, and for whom safeguards are of greater importance. It appears less likely to apply to women in view of the greater time available to lawyers at Yarl's Wood. But I judge that there is an unacceptably high risk of unfairness in a sufficient number of cases that remedial action is required beyond what is available in the individual case through the decision of the FTT. I do not think that this requires the exclusion in principle from the DFT of particular categories of claims or applicants currently not excluded in principle. 221 I am satisfied that the shortcomings at various stages require the early instruction of lawyers to advise and prepare the claim, and to seek referrals for those who may need them, with sufficient time before the substantive interview. This is the crucial failing in the process as operated. I have concluded that it is sufficiently significant that the DFT as operated carries with it too high a risk of unfair determinations for those who may be vulnerable applicants.”
“Accordingly, despite the elusive way this emerges from the text of the DFT Guidance, I have concluded that, until a person's appeal rights are exhausted, if he or she continues to satisfy the "quick processing criteria" the policy empowers the Secretary of State to detain pursuant to those criteria rather than the general detention criteria. For these reasons, despite the force of the submissions on behalf of Detention Action, I have concluded that where the "quick processing criteria" continue to be met, post-decision DFT detention pending appeal does not breach the Secretary of State's policy in the DFT Guidance.”
“Referred case to bookings co-ordinator. CO will need to speak to applicant to find out details of private solicitor so that we can rebook interview. Advised CO accordingly.”
“Your case has been reviewed. It has been decided that you will remain in detention • to effect your removal from the United Kingdom. This decision has been reached on the basis of the following factors • You do not have enough close ties to make it likely that you will stay in one place.” • to effect your removal from the United Kingdom. This decision has been reached on the basis of the following factors • You do not have enough close ties to make it likely that you will stay in one place.”
"Where an Act of Parliament confers upon an administrative body functions which involve its making decisions which affect to their detriment the rights of other persons or curtail their liberty to do as they please, there is a presumption that Parliament intended that the administrative body should act fairly towards those persons who will be affected by their decision."
“(iii) The circumstances in respect of which removal directions may be amenable to judicial review 50 The Secretary of State originally contended in a witness statement made by Mr Peckover that when removal directions are served, the only way in which the removal directions are "ordinarily" likely to be amenable to judicial review will relate first to issues relating to the safety of the route of return and second to decisions to remove being made notwithstanding there was then still an outstanding claim on the basis that he has made further representations that amount to a "fresh claim" under paragraph 353 of the Immigration Rules. I am unable to accept that because it seems clear that a decision to serve removal directions under the 2010 exceptions could and is likely to lead to at least four different types of claim, which arise in existing challenges to removal directions, as I will now explain. 51 The first category would comprise decisions to reject further representations and at the same time imposing removal directions taking effect very soon thereafter and this practice was the subject of criticism by Collins J in R (Collaku) v Secretary of State for the Home Department[2005] EWHC Admin 2855 when he was giving judgment in a case in which further representations had been made in May 2004 which were rejected on22 May 2005 when the claimant was also told that he was to be removed on the following day. He explained that:- "14. The Home Office practice involving delay in deciding a claim but then of arresting and serving the refusal at one and the same time with a view to removal within a day or two, often at weekends and frequently early in the morning, is one that is to be deplored this court has deplored it on many occasions. It leads to unnecessary applications to the duty judge. It has the effect of preventing those who are to be removed from seeking proper legal advice to which they may be entitled and, even if the Home Office takes the view that there is no conceivable merit to be both found in any possible challenge, this is not the way to go about it. A reasonable time must be provided to enable representations to be made, if any are to be made, certainly to enable advice to be sought if the person to be removed wishes to obtain it. Quite apart from anything else, the approach to the duty judge will almost inevitably result in an order preventing the removal until the matter can be sorted out, either the following day or the next working day, when an application can be put before the Administrative Court. The result is that the flight ticket has to be given up -- it is often more than one ticket because frequently an official will accompany the person to be removed -- so public money is inevitably wasted." 52 Munby J agreed with these comments in the subsequent case of R (Karas) v Secretary of State for the Home Department[2006] EWHC 747 when the claimants had had made representations that they had "fresh claims" in 2001, 2003 and March 2004 but on10 October 2004 , the Secretary of State gave instructions to an airline that the claimants were to be removed at 7.40 am on12 October 2004 . The claimants were not informed until 8.30 pm on11 October 2004 when they were arrested but fortunately, they were able to prevent removal. Both of these cases show a very disturbing practice before the 2010 document was issued but regrettably the practice has not ceased. In my experience, it was not uncommon for refusal letters to be served at almost the same time as removal directions when the standard directions were given but I am unsure if this was also the position when the 2010 exceptions are invoked. 53 In a witness statement from Mr Peckover made after the hearing he said that the service of any outstanding immigration decision will be delayed so as to coincide with service of removal directions where "there is an exceptional reason" which justified that approach but he did not say what that meant or when it would be appropriate to act in this way. 54 Second, removal directions may be subject to a challenge because, even though there may not have been any outstanding representation when removal directions were served and the statutory process has been concluded, removal directions will nevertheless still engage an individual's rights under the ECHR or under the Refugee Convention 1951. This situation may arise in many instances, such as because:- (a) ………………… ; (b)…………………. ; (c) the arguments against removal may not have been put forward earlier in the appeal process because many failed asylum seekers and others subject to removal will have received inadequate or no representation during the course of their initial application and the appeals process. By the same token, others will have had difficulty in obtaining publicly-funded representation at all and in consequence important information has not been obtained. In my work, I have to read many decisions of immigration judges and it is striking how increasingly frequently claimants are not represented. Mr Stephen Symonds the Legal Officer of ILPA explains the difficulties of those subject to removal in obtaining access to publicly-funded legal advice and representation while Joanna Swaney the supervising solicitor at RMJ, which is now in administration, explains that her experience of providing legal advice to those subject to removal directions and those of other solicitors in her team is that they are frequently called on to represent people whose cases had been inadequately prepared and presented to the Immigration Judge or where further evidence has come to light, which undermines findings made against that person by the Secretary of State or by the Immigration Judge; and (d) many of those subject to removal might well have had their claims fast-tracked and the difficulties of properly representing people subject to fast-track decisions in the appeals process is greatly increased. Indeed fast-tracking means as with all expedited hearings that there is inevitably an increased risk that important points might well have been missed and significant evidence might not have been adduced. 55 The third area in which those subject to removal directions might have grounds for challenging them is in relation to certification decisions under sections 94 and 96 of the 2002 Act or under Part 2 of Schedule 3 to theAsylum (Treatment of Claimants etc) Act 2004 . The effect of certification is to remove an in-country right of appeal (see section 94 of the 2002 Act) or to remove the right to any decision on the claim at all under the Dublin Regulations. In these cases, the only remedy available to the person who receives such a certificate is to seek to challenge it by means of judicial review because there would have been no previous opportunity to obtain access to a court regarding an individual's asylum or human rights claim. It is for that reason that until January 2010, threats of judicial review were sufficient to lead to a deferral of removal directions in non-suspensive appeal or third country cases but not in ordinary cases.”
“Everyone has the right to liberty and security of person”