APPENDIX 4: LETTER DATED 10 MAY 2007 FROM
LIAM BYRNE MP, MINISTER OF STATE, HOME OFFICE, RE. IMPLEMENTATION
OF JUDGMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS
Thank you for your letter of 23 January to John Reid
seeking details of the Government response to two recent ECtHR
judgements - in the cases of Saadi v United Kingdom and
Keegan v United Kingdom. I am sorry for the delay
in replying.
The answers to your questions about these two cases
are attached. I should mention that the Saadi case
has been referred to the Grand Chamber of the ECtHR on the application
of the claimant and the judgement handed down last July is not
therefore final. The case is due to be heard on 16 May.
I hope the attached information is helpful.
Appendix
Saadi v United Kingdom
(App No 13229/03)
What steps the Home Office has taken, or proposes
to take, to ensure that the detention of asylum seekers is a)
only undertaken as "a genuine part of the asylum process;
and b) is not arbitrary?
Oakington Reception Centre opened in March 2000 as
a centre for deciding asylum applications quickly through a process
known as the fast track process. In a written Ministerial
statement on 16 March 2000 the then Minister, Barbara Roche, explained
that [Col. 385]:
"Oakington Reception Centre will strengthen
our ability to deal quickly with asylum applications, many of
which prove to be unfounded. In addition to the existing
detention criteria, applicants will be detained at Oakington where
it appears that their application can be decided quickly, including
those which may be certified as manifestly unfounded … Detention
will initially be for a period of about seven days to enable applicants
to be interviewed and an initial decision to be made. Legal
advice will be available on site."
In R (Saadi) v Secretary of State for the Home Department
[2002] 1 WLR 3131 the House of Lords considered the lawfulness
of detaining asylum claimants, pursuant to the fast track process
at Oakington, for the sole purpose of deciding their claims quickly.
Their Lordships concluded that detention for the purpose of
claims being decided quickly was lawful both within the Immigration
Act 1971 and under Article 5 of the European Convention on Human
Rights. Lord Steyn, having held (paragraph 43) that detention
under the fast track process was "to prevent [a person] effecting
an unauthorised entry into the country" within the meaning
of Article 5(1)(f), added (paragraphs 45 pf the judgement) that:
"I do not see that either the methods of
selection of these cases (are they suitable for speedy decision?)
or the objective (speedy decision) or the way in which people
are held for a short period (ie short in relation to the procedures
to be gone through) and in reasonable physical conditions even
if involving compulsory detention can be said to be arbitrary
or disproportionate".
The Detained Fast Track (DFT) was set up in April
2003 at Harmondsworth Removal Centre building on the success of
the original Oakington fast track process. It was initially
limited to single male asylum applicants who were considered to
have straightforward claims and who could be detained pending
a quick decision. A female DFT process opened in May 2005
at Yarl's Wood Removal Centre.
A further written Ministerial statement was issued
by the then Minister, Des Browne, on 16 September 2004 [Col. 391]
in relation to the DFT. This explained that:
"A key element in the Government's strategy
to speed up processing of asylum claims has been the introduction
of the fast track asylum processes operated initially at the Oakington
reception centre and now also at Harmondsworth removal centre
and other locations. The use of detention to fast track
suitable claims under these processes is necessary to achieve
the objective of delivering decisions quickly. This ensures, amongst
other things, that those whose claims can be quickly decided can
be removed as quickly as possible in the event that the claim
is unsuccessful … When deciding whom to accept into fast
track processes account is taken of any particular individual
circumstances known to us, which might make the claim particularly
complex, or unlikely to be resolved in the timescales however
flexibly applied. The existence of UK based family ties - such
as a spouse, partner or child - would not automatically exclude
a claimant from the process as some issues, such as article 8
family life ones, can be relatively easy to decide quickly given
the case law and the individual's actual circumstances".
The statement confirmed that decisions should generally
be made within 10-14 days.
The DFT has a focus on high quality decision-making,
with access to high quality legal advice through a panel of duty
solicitors, and a case owner with overall responsibility for a
case throughout the process. The DFT process provides an
in-country right of appeal subject to an accelerated statutory
timetable set out in the Asylum and Immigration Tribunal (Fast
Track Procedure) Rules 2005.
The fairness of the DFT process was challenged in
2004 in both the High Court and the Court of Appeal. The
latter court upheld the judgement of the former court that the
Harmondsworth system was not inherently unfair or arbitrary.
However, the Court of Appeal suggested that a "written
flexibility policy to which officials and representatives alike
can work will afford a necessary assurance that the .…timetable
is in truth a guide and not a straitjacket". Following
the Court of Appeal judgement a "Flexibility Document"
was published to ensure that the DFT process operated flexibly
and fairly. That document is in the public domain and it
continues to guide the day to day operation of the DFT process.
The Flexibility Document is designed to ensure the
fairness of the DFT process. In addition, there is a "Suitability
Document", also in the public domain, that is designed to
ensure that the DFT process is not arbitrary. As indicated
above, the DFT process is considered to be suitable only for single
males or females with no dependants, so family cases, for example,
are not detained under the DFT process. In addition, the Suitability
Document gives advice on a wide range of other types of cases
that are not suitable for the DFT process, eg persons under the
age of 18 and those with a medical condition requiring 24 hour
nursing or medical intervention. The Suitability Document
also provides a list of countries that are likely to be suitable
for the DFT process. However, it makes it clear that any
asylum claim may potentially be fast-tracked, whatever the nationality
or country of origin of the claimant, where it appears after initial
screening to be one that may be decided quickly. The Suitability
Document is kept under review and revised from time to time to
reflect changes in case law and country conditions, etc.
The decision to process an asylum claim in the DFT
process is taken by a specialist IND unit - the Asylum Intake
Unit - that liaises closely with the DFT Units at Harmondsworth
and Yarl's Wood. Once detained in the DFT process, a claimant
is interviewed in depth about their asylum claim, usually within
2-3 days of their date of detention. If, following that
interview, it becomes clear that the claim is not one that can
be decided quickly, then the claimant will be released from the
DFT process and the claim will be dealt with on a slower, non-detained
track. About 15% of those detained in the DFT process are
released before a decision is made on their claim.
Additional safeguards exist post-decision. For
example, an Immigration Judge may remove a case from the DFT process
if he is satisfied that there are exceptional circumstances
which mean that the appeal cannot otherwise be justly determined.
The detainee also has the right to apply for bail.
Taken together with the numbers released pre-decision,
about one third of those who enter the DFT process are removed
from it before their case becomes "appeal rights exhausted".
This demonstrates that the DFT process is neither unfair nor
arbitrary but, rather, is operated in a flexible and sensible
manner, with each case being judged on its merits at each key
stage of the process.
What steps have been taken by the Home Office
to disseminate the findings of the ECtHR in Saadi v UK?
A synopsis of the Saadi judgement was disseminated
to all DFT staff within a few days of the promulgation of the
Court's judgement.
What steps, if any, have been taken to ensure
that an individual is not detained for a significant period of
time without any assessment of whether or not his detention is
arbitrary and unlawful?
The ECtHR in Saadi held that a delay of 76
hours in providing reasons for detention was not compatible with
the requirement in Article 5(2) that such reasons be given "promptly".
The Home Office is satisfied that no such delay could occur
under the DFT process. When a decision is made to detain
a claimant in the DFT process, the claimant is given form IS91R
"Reasons for Detention and Bail Rights". This
will indicate, among other things, that the Immigration Officer
is satisfied that the asylum claim can be decided quickly using
fast track procedures. In addition, claimants are taken
through a standard "induction" programme with DFT staff
within 24 hours of their entry to the DFT process during which
that process is explained. They are also given prompt access
to legal advice through a panel of duty representatives, or they
can use their own private legal representative if they wish.
We are therefore satisfied that the process takes full account
of the Saadi judgement.
Once detained, the continuing detention of DFT claimants
is reviewed regularly by a DFT case owner after 24 hours, 3 days,
7 days, 14 days and 21 days. A detention review would also
be conducted on an ad hoc basis following a significant change
of circumstances or event relating to a particular case. The decision
on whether or not to maintain detention has to be authorised by
a senior officer. After 28 days, detention reviews are
undertaken by a central unit, which is separate from the DFT process,
to ensure that the decisions about detention for periods of a
month or more are taken in an entirely objective manner by officials
not connected with the determination of the asylum claim and authorised,
where appropriate, by increasingly senior officials as the length
of time in detention increases.
What steps, if any, have been taken to ensure
that the reasons for an individual's detention are communicated
to him "promptly"?
At the time of Mr Saadi's detention at Oakington
in 2001 the reasons for detention notice (IS91R) served on all
detainees at the point of their detention did not contain specific
reference to the fast-track asylum process. As a result,
the ECtHR held that the first time the real reason for Mr Saadi's
detention was communicated to him was when his representative
was informed orally (approximately 76 hours after he was first
detained) that he met the criteria for Oakington. The position
has long since been rectified, initially by the inclusion of an
Oakington-specific addendum to the IS91R and, subsequently, by
revision of the form itself to include specific reference to the
fast-track asylum process as a reason for detention.
What are the average and longest times spent in
detention in immigration removal centres (or at other venues)
by an asylum applicant?
Information relating to length of time spent in detention
for asylum applicants detained solely under Immigration Act powers
is published in the Quarterly Asylum Statistics bulletins available
on the Home Office's Research, Development and Statistics website
at: http://www.homeoffice.gov.uk/rds/immigration1.html. Due to
data quality issues, information on length of time spent in detention
for persons detained as at 30 December 2006 is not available.
Whether figures are available on:
The number and proportion of applicants detained
and then subsequently removed from the United Kingdom?
Information relating to the number of asylum applicants
recorded as leaving detention solely under Immigration Act powers,
with the reason for leaving as having been removed from the UK,
is also published in the Quarterly Asylum Statistics bulletins.
This information was first published in February 2006 and covered
the period between July and September 2005.
The number and proportion of applicants detained
who are unable to be removed from the United Kingdom due to administrative
or other difficulties unrelated to their application?
The number and proportion of applicants who are
detained, released and subsequently detained for an additional
period?
Information relating to the number of asylum applicants
detained who are unable to be removed from the UK due to administrative
or other reasons, and those who are detained, released from detention
and subsequently detained for an additional period is not available;
it would only be available by examination of individual records
at disproportionate cost.
Keegan v United Kingdom
(App No 18867/03)
What steps have been taken to draw this judgement
to the attention of Police Authorities, and ensure that particular
and appropriate efforts are made to avoid disproportionate, unnecessary
or negligent searches in breach of Article 8 ECHR?
Whether, in the Government's view, had the events
in this case occurred after October 2000, a claim for damages
pursuant to sections 7-8, HRA 1998 would have provided an effective
remedy for the applicants?
If not, whether the Government has considered
the introduction of a new remedy for individuals affected by the
conduct of disproportionate, unnecessary or negligent searches?
This case highlighted the importance of compliance
with the provisions of section 15 of the Police and Criminal Evidence
Act (PACE) 1984 and the associated provisions in section 3 (Search
Warrants and production orders: Before making an Application
& Making an Application).
These provisions clearly set out what reasonable
enquires an officer must make prior to making an application for
a warrant, including anything known about the likely occupier
of the premises, the nature of the premises, whether previous
searches have occurred and any other relevant information.
When information appears to justify an application, the officer
is required under paragraph 3.1 of Code B to ensure that reasonable
steps are taken to check that the information is accurate, recent
and not provided maliciously or irresponsibly. The officer
is required to make use of this information on making an application
and required, among a number of other actions, to specify the
person in occupation of the premises.
The case was reported in the Times on 9 August and
has been reported in a number of Official Reports and law journals.
This would have been picked up by legal departments within
police forces and police authorities. However, we do not
envisage specifically drawing this judgement to the attention
of police authorities. That is because the police service
is required to carry out all their activities in a fair, proportionate
and lawful manner. There is little to be gained from sending
out a notification to forces telling them not to be negligent.
As indicated above, the provisions for entry and
search of premises are set out in PACE. Breach of such
provisions may render evidence gathered during the course of an
investigation as inadmissible. Any breach of the PACE Codes
may also render individual officers subject to disciplinary proceedings.
It would also be open to any aggrieved party to consider civil
proceedings. These remedies were open to prior to and since
the introduction of the HRA 1998. An HRA claim would provide
an adequate remedy.
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