In the first judgment of its kind since the suspension of the Detained Fast Track on 2 July 2015, the High Court struck down the Home Secretary’s refusal and certification of an asylum claim which was made in the structurally unfair and unjust Detained Fast Track (DFT) and ordered the Home Secretary to remake the decision afresh without regard to material obtained in the unfair process. The case is R (on the application of Zafar) v The Secretary of State for the Home Department [2016] EWHC 1217 (Admin).

The High Court also directed the Home Secretary to pay substantial damages for falsely imprisoning the Claimant, a vulnerable victim of torture, for 213 days as a result of subjecting him to an unlawful detained fast track asylum process and seeking to return him to Pakistan without giving him the opportunity to have his asylum claim fairly determined.

The Claimant is a 47-year old Pakistan national who claimed asylum in March 2015. On screening, he disclosed that he feared return to Pakistan because he had been kidnapped, detained and beaten by gang members who knocked out three of his teeth and tortured him. He also disclosed that he suffered memory loss, depression and physical ailments including bladder incontinence, kidney stones and back problems as a result of the torture he suffered. The Home Secretary decided that his claim was not suitable for the DFT and granted him temporary admission. Two months later, the Home Secretary did a volte face and decided to detain him and include him in the DFT. No reasons were given for this change in position. The Claimant had no effective legal representation in the DFT and struggled to understand questions asked of him in the substantive interview due to his suffering depression, memory loss, hearing problems and physical ailments which affected his ability to concentrate and engage over a 4 ½ hour interview.

The Claimant only secured effective legal representation from Duncan Lewis Solicitors with the assistance of the Helen Bamber Foundation and the Jesuit Refugee Services, and successfully obtained an injunction to prevent his removal from the UK to Pakistan in circumstances where he had been deprived of a fair determination of his claim for international protection.

In a detailed judgment, the High Court held that there “is and can be no rational explanation” for the decision to include the Claimant in the DFT. When he was interviewed, “alarm bells” ought to have been raised that the Claimant “plainly” did not have the ability to present his claim in a coherent manner given his suffering memory loss, depression, hearing problems and multiple physical ailments. The interview should have been stopped and the failure to do so was a breach of the Home Secretary’s own policy which acknowledged that those who clearly lacked the mental capacity or coherence to sufficiently understand the asylum process or cogently present their claim. The High Court directed that the de novo reconsideration of the Claimant’s claim for international protection must have no regard to the answers he gave in the substantive asylum interview.

Salient principles in the Judgment are as follows:

• There were two different classes of case that were inappropriate for fast-tracking:
  1. complex claims which, by reason of their nature or complexity, could not be dealt with fairly in the fast-track process. This included cases where it was “foreseeable” that further inquiries were necessary to obtain clarifactory or corroborative evidence without which a fair and sustainable decision could not be made, and where “it was not possible to foresee” that those inquiries could be completed within a truncated time table: [59]
  2. claims made by claimants who were actually or potentially vulnerable (in the sense defined at paras 1-3 of JM and Ors), many of whom would not have been regarded as suitable for detention at all, let alone within the fast track, save in very exceptional circumstances: [60]
• Screening officers are obliged to identify cases falling in either or both of these categories so that they could be eliminated from the DFT. That evaluation needs to be made on information available at the time of screening, or substantive interview, as the case may be: [58] and [61].
• In JM and Ors and PU and Ors, what the individual said in screening was enough to have triggered a requirement to eliminate them from the fast-track: [61]. The question whether that should happen in any given case depends on the evidence relating to that case and the individual applicant: [62].
• It is not possible to say that a claim, simply by virtue of appearing to be capable of being certified, would necessarily be suitable for the DFT. Whether there is sufficiency of protection will be tailored to specific facts and the assessment of suitability for the DFT must thus be approached in the same way: [71].
• In circumstances where the Claimant should never have been included in the DFT, the adverse decision on his claim must be quashed because it would not have been made when it was: [76].
• Had it not been for the unlawful decision to include him in the DFT, he would never have been detained at all after the refusal of his asylum claim: [77].
• A fresh claim to be considered under Rule 353 of the Immigration Rules was not a sufficient remedy in this case as the Claimant was never afforded a fair opportunity to put his claim, and there were “grave concerns about” whether he was truly in a fit state mentally to undergo the substantive interview, especially without a lawyer being present. Fairness dictates that the matter should be evaluated completely afresh: [80].
• The Home Secretary would not be entitled to rely on the answers given by the Claimant in his substantive asylum interview because there is a real risk of an unfair outcome resulting from reliance on information produced in consequence of the adoption of an inappropriate and unfair process: [81]-[82].

In the absence of the Home Secretary implementing a scheme by which unfair decisions made in the DFT were reviewed in any systematic way, this judgment provides welcomed guidance on the correct approach to remedying decisions made in respect of vulnerable persons in the structurally unfair and unjust DFT.

The Claimant was represented by Shu Shin Luh of Garden Court’s Public Law and Civil Liberties teams and Ahmed Aydeed at Duncan Lewis Solicitors of Duncan Lewis Solicitors.

In a separate settlement obtained in March 2016, the same legal team also secured a similar settlement for a vulnerable female victim of torture before trial. The consent order is attached.