In Ali v Home Office EW Misc 27 (CC) [2020], the County Court robustly dismissed a false imprisonment claim brought by an Afghan refugee who was detained for 98 days under the Detained Fast Track process in 2015. 

County Court cases are rarely reported and so one might expect something significant within the 124 paragraphs of this judgment. It is certainly unusual for the Home Office not to settle a false imprisonment case before it goes to trial, and it is even more unusual for the department to instruct its own expert to give witness evidence. But aside from some helpful discussion around how the Detained Fast Track litigation bears upon Mr Ali’s facts, and some passages on assessing quantum (the amount of damages), it is a rather undistinguished judgment.

Background 

Mr Ali claimed asylum in December 2014, four weeks after arriving in the UK and a few days after his visit visa expired. He claimed asylum because of his fear of persecution by the Taliban if returned to Afghanistan. The Home Office decided that his claim was suitable for the Detained Fast Track process and so he was detained a week after his screening interview took place. 

Mr Ali’s asylum claim was refused and his sped-up appeal under the Detained Fast Track dismissed, leaving him appeal rights exhausted by February 2015. He then made a fresh claim and was granted bail. A year later he was granted refugee status. 

Before the County Court

In the County Court, Mr Ali argued that his asylum claim should have never been considered under the Detained Fast Track. The screening interview officer shouldn’t have concluded it was suitable, and since the whole process was ruled unlawful in the Detention Action litigation, the tribunal’s dismissal of his appeal should be deemed unlawful as well. 

The court dismissed Mr Ali’s claim on all grounds, finding that the screening interviewer was entitled to conclude that his claim was suitable for the Detained Fast Track. The court also did not accept that the DFT timescales created an “unacceptable risk of unfairness” in Mr Ali’s case. That being the case, there was no award of damages, but the judge does canvass some of the past cases on the appropriate level of damages had he needed to calculate it — see paragraphs 110 to 119.

There are some areas of the court’s reasoning that are a little difficult to agree with. For instance, in deciding whether the Home Office would have been entitled to detain Mr Ali under Chapter 55 of the Enforcement Instructions and Guidance, the judge cited with approval Home Office witness evidence that Mr Ali had “committed a criminal offence by overstaying his visa”. For most asylum practitioners, comments like this are like a red rag to a bull, given that he only overstated by four days before claiming asylum and was ultimately accepted as a refugee.

Criticism of the expert witness

There is also the issue of the court’s hostility towards the claimant’s expert. Much of paragraph 98 is devoted to elaborating on what an “extremely hesitant and unimpressive witness” she was. Some of the criticisms seem a little overblown: for instance, the expert had maintained that the lack of entries in Mr Ali’s GP records regarding his mental health was not something that made her question Mr Ali’s credibility. This seemed to enrage the judge who took her answer to be “deliberately prevaricating” and accused her of avoiding the question.

County Court litigation is lengthy, sometimes taking many years, and often by the time any damages come through they are little comfort to the claimant. It is frustrating, then, to see the County Court taking such a dim view of someone with no criminal record and a low risk of absconding who lost 98 days of his life to detention. Hopefully this case isn’t a warning sign as to how the Home Office and the courts plan to treat future claims for false imprisonment under the Detained Fast Track.

Free Movement training course: unlawful detention (3 CPD):