The Home Secretary has conceded it was unlawful to detain a woman at Yarl’s Wood in the detained fast track (DFT) process in 2013, after the woman had suffered from a history of domestic violence for marrying outside her caste. The Home Secretary has agreed to reconsider the claimant’s asylum claim and pay damages.
This case follows the Detention Action litigation and the decision by the Home Office on the 2 July 2015 in JM and IK Others (CO/499/2015) to suspend and review the detained fast track (DFT) because of the unacceptable risk of unfairness.
The settlement of the case by the Home Secretary confirms that the remedy for claims which have been subject to the unlawful and unfair DFT process is de novo consideration of the asylum claim. This must take place without reference to the previous refusal and the adverse appeal decision in the DFT.
A fresh claim would normally proceed upon the basis that the original decision was correctly decided on the evidence available at the time. This is not so with the DFT cases: a key a part of the unfairness was the inability of asylum seekers to obtain supporting evidence before they were refused and the inherent unsuitability of such cases for determination in the DFT.
Prior to this case, the Home Office had yet to take a consistent position on remedying unfair DFT decisions. The consent order in this case is welcome clarification. It fully reflects the ruling of the Court of Appeal in the RLC case which made clear that an asylum seeker is entitled to a fair hearing at all stages of the process and that unfairness in the Home Secretary’s considerations is not cured by the possibility of appeal.
This was, of course, before the DFT appeal process was itself also ruled to be unlawful by the Court of Appeal in Detention Action 2  EWCA Civ 1634. More recently, the rules themselves were held to be so unfair as to be ultra vires: Detention Action 3  EWCA Civ 840. In this case, it was the pre-2005 Rules that were an issue, not the 2014 Rules struck down by the Court. The Home Secretary has accepted in that litigation that the 2005 rules must, by implication, also be ultra vires because, if anything, they imposed a “slightly stricter” timetable on DFT appeals.
The consequence for the claimant in this case was that she was unlawfully detained throughout for four months. During this time, her mental health seriously deteriorated to such an extent that she was granted discretionary leave on that basis. There is now the opportunity, denied to date, of a fair determination of her claim for Refugee Status.
The damage done to her health during four months’ incarceration in Yarl’s Wood, terrified of return to the country where she feared repeated persecution, may never be remedied.