Despite the case of JM & Ors v SSHD & Anor [2015] EWHC 2331 which led to the suspension of the Detained Fast Track on 2 July 2015 by way of a Ministerial Statement, the Secretary of State for the Home Department has continued to defend decisions to unlawfully detain vulnerable persons whose cases were on all fours with the lead claimants in JM: that is to say, persons who had provided indicators of their vulnerability to the Secretary of State, including crucially letters from the Helen Bamber Foundation that ought to have triggered the Home Office’s policy and led to their release.
In YA v Secretary of State for the Home Department [2017] EWHC 2135, the Administrative Court have held “without hesitation, in light of the concession and declaration in JM that it was unlawful not to release the Claimant within one day of receipt of the letter [from the Helen Bamber Foundation].”
In YA’s case, the High Court has also held that "there was an unacceptable failure to identify him as a potentially vulnerable person whose case required further investigation and therefore as someone whose claim was not in fact suitable for retention within the DFT because it could not be dealt with fairly and quickly within the DFT. The combined process of screening and the operation of Rules 34 and 35 had the proper procedures been followed would have identified him as a possible victim of torture. The unacceptable risk of failure referred to in the "unsuitability for DFT declaration" of Blake J applies squarely to the facts of this Claimant's circumstances and experience in the DFT.”
For those reasons, the Administrative Court has held that the Secretary of State unlawfully detained YA.
TJ Birdi, Executive Director of the Helen Bamber Foundation, commented,
"The Helen Bamber Foundation welcomes this judgment which highlights that vulnerable people should not be detained whilst their asylum cases are considered. There is consistent research evidence to show that such detention also causes them considerable distress and mental deterioration."
YA's solicitor, Krisha Prathepan of Duncan Lewis, said,
"It is astonishing that the Secretary of State for the Home Department continues to defend these cases despite the landmark judgment in JM & Ors that caused the DFT to be suspended. The failures in procedural safeguards that were identified and accepted by the Secretary of State in JM, were all at large in this case. The Secretary of Sate knew that and yet defended this case all the way. Hopefully the Secretary of State will reflect on this judgment and modify her approach to these cases involving the most vulnerable people seeking protection."
Raza Halim of Garden Court Chambers represented YA and was also junior counsel in the JM litigation.
Raza is a member of the Immigration and Public Law teams at Garden Court Chambers. He was instructed by the Public Law team at Duncan Lewis who also represented the lead claimants in JM & Ors, Krisha Prathepan acting for YA.
