High Court strikes down unfair asylum decision of vulnerable torture victim made in the Detained Fast Track

Wednesday 25 May 2016

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).

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The Court ordered the Home Secretary to remake the decision afresh without regard to material obtained in the unfair process. 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 four and a half 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 handed down today, 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 should not be subjected to such asylum interviews. 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.

In the absence of the Home Secretary implementing a scheme by which unfair decisions made in the DFT can be 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 of Duncan Lewis Solicitors. Shu Shin acted as junior in the successful group litigation in July 2015 which materially contributed to the Immigration Minister’s suspension of the Detained Fast Track. Duncan Lewis Solicitors represented four of the seven lead claimants in that litigation.

More information can be found in the judgment: R (Zafar) v SSHD.

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. Click here for the consent order. A team of Garden Court barristers, including Shu Shin Luh, were involved in the July 2015 litigation which led to the High Court declaring that the DFT failed to protect victims of trafficking, was discriminatory and breached their human rights.

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