Joint Committee On Human Rights Sixteenth Report


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.


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: 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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