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Detained fast track asylum appeals system declared unlawful
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The detained fast track appeals system was last Friday held to be unlawful in the High Court. The is available here: Detention Action v First-Tier Tribunal (Immigration and Asylum Chamber) & Ors  EWHC 1689 (Admin). The Home Office will appeal the judgment, which is in the meantime stayed. This means that fast track appeals can continue until the appeal is heard, unless a further order is made.
The detained fast track appeal system is a process whereby a person claiming asylum is detained and subjected to a massively condensed asylum process. This includes the initial Home Office interview and decision and the entire appeal process. For example, there are two days to lodge an appeal rather than the normal 14 and a mere five days to prepare an appeal rather than the normal weeks or months.
The key objections to the process are that:
- Refugees and asylum seekers are deprived of their liberty — society’s ultimate sanction — for the purpose of mere administrative convenience; and
- It is extremely difficult (impossible, really, as this judgment accepts) even for experienced lawyers adequately to prepare an appeal in that time, and utterly impossible for an unrepresented appellant. And nearly half of appellants are unrepresented.
Mr Justice Nicol finds that the detained fast track appeal process is structurally unfair:
57. In my judgment the FTR [Fast Track Rules] do incorporate structural unfairness. They put the Appellant at a serious procedural disadvantage. I have summarised above Ms Ghelani’s evidence of the kind of tasks which the representative of an appellant in a Fast Track appeal must accomplish in the 7 working days before the first opportunity to come before Tribunal and argue that the case should be taken out of the Fast Track. I shall assume that the appellant is represented, although that is not always so (according to Ms Ghelani’s first witness statement approximately 43% of the detainees at Harmondsworth in the Fast Track in the period July- September 2014 [from the context this seems to be a typo for 2015] were unrepresented. These figures come from HMCTS. The evidence of Daniel Smith on behalf of the SSHD suggests that there was a significant increase in representation rate after October 2014 since, according to him, between 1st July 2014 and 31st December 2014 only 7.4% of Fast Track appellants at Harmondsworth were unrepresented).
58. The appellant is always detained and, as is obvious, but which Ms Ghelani confirms, the fact of detention places additional obstacles in the way of achieving all that has to be done before the Tribunal hearing. Furthermore, the representative has to prepare simultaneously an application for adjournment or taking the case out of the Fast Track and the substantive appeal itself. The case histories presented by Ms Ghelani do indeed show, as Ms Lieven submitted, that these are real, not just theoretical difficulties for appellants’ lawyers.
Of course, those lawyers are not the only ones who will have to prepare an application to adjourn and, at the same time, the client’s substantive case in the event that the adjournment request is refused. That can happen in the context of other litigation. However, it is then the result of one of two things (or sometimes both). It may happen because the adjournment application is made late. Any difficulties this causes the lawyers are their client’s own fault.
59. Alternatively, the court or tribunal may have decided that the adjournment request should be considered at the full hearing. Then there will have been a judicial determination that this is a fair way to proceed. The problems which a Fast Track appellant’s lawyer faces has neither of these causes. The procedural disadvantage is not because of the client’s dilatoriness, nor because the FTT has decided that this is a fair way to proceed, but because his opponent in the appeal, the SSHD, has decided that this is what should happen.
60. What seems to me to make the FTR structurally unfair is the serious procedural disadvantage which comes from the abbreviated timetable and curtailed case management powers together with the imposition of this disadvantage on the appellant by the respondent to the appeal.
The judge rejected the Home Office submission that the fact an adjournment application can be made renders the process fair and goes on to find that the rigidity of the fast track rules looked uncomfortably akin to “sacrificing fairness on the altar of speed and convenience.”
The judgment is critical of the Tribunal Procedure Committee (TPC) and concludes that the rules made by the committee were unlawful:
…by allowing one party to the appeal to put the other at serious procedural disadvantage without sufficient judicial supervision, the Rules are not securing that justice be done or that the tribunal system is fair. While the TPC had to make procedure rules “with a view to securing” these objectives and while it had to balance those aims against the others set out in the statute, it could not impinge on the minimum level of fairness or the irreducible minimum of due process bearing in mind the appropriate degree of fairness that asylum appeals require. For these reasons, in my judgment, the Fast Track Rules were ultra vires.
As a final aside, the increase in unrepresented appellants being subjected to the fast track process is itself very striking: unrepresented appellants increased from 7.4% of cases in the period July to December 2014 to 43% in the period July to September 2015.