Ali v The Home Office [2022] EWHC 866 (QB) is a successful appeal against the Central London County Court’s decision to dismiss the false imprisonment claim of a recognised Afghan refugee, detained for 98 days under the Detained Fast Track process in 2015. Larry has previously covered the County Court decision, which was reported.

Mr Ali had been detained between December 2014 and March 2015 as a person liable to removal from the UK pursuant to Schedule 2, paragraph 16(2) of the Immigration Act 1971. After initially being refused asylum by the Home Office and on appeal, the case was reopened and Mr Ali granted asylum by a different immigration judge. His overall argument on unlawful detention was that

(a) his asylum claim was never a suitable one for the [Detained Fast Track]; and (b) as the [First-tier Tribunal]’s dismissal of his [asylum] appeal on 26 January 2015 was subsequently set aside… this had the effect of rendering his detention during Phases 2 – 4 unlawful.

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In the High Court, Mr Ali’s challenge to the County Court decision was upheld on five of the seven grounds:

i) The Judge erred in the way she arrived at her conclusion that the Respondent had made sufficient enquiries regarding the suitability of the Appellant’s asylum claim for the DFT (Ground 1); erred in her approach to the failure to comply with the relevant policy guidance in respect of the documentation supplied by the Appellant (Ground 2); and erred in the basis for her conclusion that it was open to the Respondent to conclude that the asylum claim was suitable for the DFT (Ground 3);

ii) The Judge’s alternative conclusion that only nominal damages were payable if the detention was unlawful was also flawed by a failure to determine relevant matters (Ground 4); and

iii) The Judge applied the wrong test in deciding that the setting aside of the order dismissing the Appellant’s FTT appeal did not render his detention unlawful because there was no unfairness in relation to his particular appeal (Ground 6).

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The court helpfully considers some relevant authorities following on from the decision of Mr Justice Nicol in Detention Action v FTT (IAC) & Ors [2015] EWHC 1689 (Admin), which was confirmed by the Court of Appeal in Lord Chancellor v Detention Action [2015] EWCA Civ 840.

These include R (TN (Vietnam)) v Secretary of State for the Home Department [2018] EWCA Civ 2838,  which held that although the Detained Fast Track procedure rules were ultra vires, it did not follow that First-tier Tribunal appeals decided under those rules were automatically unfair. This was upheld by the Supreme Court. On the facts of this case, though, the decision made in the appeal had been set aside. In these circumstances, the judge held that the correct approach was to ask whether the First-tier Tribunal decision later set aside “bore on the Appellant’s detention” (see paragraphs 108-114).

Consideration was also given to the screening interviews in use at the time Mr Ali claimed asylum. The Court of Appeal in R (JB (Jamaica) v Secretary of State for the Home Department [2013] EWCA Civ 666 held that the format did not “enable an informed assessment” of whether a fair and sustainable decision would be possible within Detained Fast Track timescales. This had led to amendments to the screening questions (see para 39).

County Court errors

The first instance judge had concluded that just because the record of Mr Ali’s asylum interview failed to list all the documents he produced (and the language they were in), this was not a breach of section 3 of the Detained Fast Track policy: the documents had not been material to the outcome of his asylum claim. But this was not the right question to ask:

… the Judge’s conclusion involved a misdirection. The correct question to be asked was whether the breach of policy was material in the sense that it was capable of bearing on the decision to detain (Lumba: para 36 above). In turn, that question depended upon whether the breach was capable of impacting on whether the claim was suitable for the DFT in terms of the likely timescale for its determination

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The judge had also fallen into error in saying that she would determine the question of whether his detention was unlawful, without reference to materials that the screening officer didn’t have available. This was the wrong approach, as part of Mr Ali’s complaint was that there had been insufficient enquiry into his claim and, given more time, he could have provided further evidence to support it.

On nominal damages, the judge had failed to apply the correct test in paragraph 95 of Lumba [2011] UKSC 12: had the Home Office acted lawfully, then the appellant could and would have been detained in any case. There had also been no assessment in relation to the Hardial Singh principles and whether it remained reasonable to detain him throughout the relevant period.

Mrs Justice Heather Williams invited further submissions from the parties on how to proceed in light of her judgment, including whether a new County Court trial is needed or if she can decide the outstanding issues herself. So, although there is no finality yet, the decision is certainly a step in the right direction towards getting Mr Ali a resolution for what is quite an involved history of detention.