In Detention Action v Secretary of State for the Home Department [2014] EWHC 2245, Ouseley J considered a challenge to the lawfulness of the policy and practice applied by the Secretary of State in the operation of the detained fast track and concluded that it ‘carries with it too high a risk of unfair determinations’ ([221]).

Ouseley J held that the system was not unlawful in its terms, and although the process had a number of short-comings (for example, at the screening interview and in terms of safeguarding vulnerable claimants, including through the ineffective Rule 35 procedure), they were ‘remediable deficiencies which together fall short of showing that the detention is unlawful or that the process contains so high a risk of an unfair decision that it is inherently unlawful’ ([195]).

However, he considered that the ‘crucial safeguard, the crucial ingredient to a for a fair hearing’ ([195]) was independent, effective legal representation and that ‘the period in detention before they are allocated and the proximity of allocation to the substantive interview means that in too high a proportion of cases, and in particular for those which might be sensitive, the conscientious lawyer does not have time to do properly what may need doing’ ([196]). This meant that ‘the DFT as operated carries an unacceptably high risk of unfairness, but one which I judge can be removed by the earlier instruction of lawyers’ ([197]).

Ouseley J concluded:

219. I draw the threads together. The DFT policy is not unlawful in its terms. It does not contradict the provisions of statute or Directive, nor is it in breach of the ECHR. The inclusion of the appeal process in the DFT is lawful. The overall test in relation to a quick but fair decision is lawful. I do not accept the arguments that particular claims should of themselves be excluded. The period of detention overall is not unlawful in general. I do not consider that there is discrimination against women applicants in the process.

220. The screening process for and safeguards once in DFT require officials to consider explicitly at all stages not just the suitability of the claim for quick determination or of the applicant for detention but also the effect on the fair presentation of the claim which the timetable and the fact of detention may have for that applicant. I have made a number of comments to that end throughout. The process is not as focussed on that as it should be throughout. But the various shortcomings which I have identified do not show the process to carry an unacceptable risk of unfairness, save in one respect.

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.

The practical ramifications of the judgment remain to be seen.

The Equality and Human Rights Commission (who intervened) were represented by Stephanie Harrison QC and Michelle Brewer.