19 June 2015

On 12 June 2015, a High Court judge found that the Rules for appeals under the Detained Fast Track system in the UK were unlawful, following a challenge brought by the NGO, Detention Action.

The Home Office allocates asylum cases to the Detained Fast Track after a screening interview if it considers that the case can be decided quickly. Applicants are then placed in administrative detention at designated centres where their asylum claim is processed. If refused, their appeal will continue under the Fast Track rules and they will be deprived of their liberty until the resolution of their case. Ten years ago, the system was expanded to incorporate appeals, with over 2,000 appeals being heard each year. 

The main features being challenged were the significantly shorter timescales and the reduced powers given to judges to manage cases, as compared to normal procedures. Lawyers described the obstacles faced in preparing a Detained Fast Track appeal, highlighting that they only have seven working days to accomplish a number of tasks, such as; taking instructions, preparing evidence, arranging translations and expert witnesses, requesting bail and arguing for their client to be released from the Detained Fast Track, all whilst their client is in detention, thus creating further difficulties.

Judge Nicol found that the Detained Fast Track procedures were ‘structurally unfair’ and looked ‘uncomfortably akin to sacrificing fairness on the altar of speed and convenience’. Justice was not being served as appellants were being put at a serious procedural disadvantage, ‘without sufficient judicial supervision’, causing them real difficulties in presenting their appeal solely because their opponent, the Home Office, decided that this should happen. This meant that there was no legal authorisation to make the Rules.

Despite this finding, the order quashing the system was suspended to allow the Home Office to appeal, which means that the system will continue operating for the time being. Detention Action will argue, on 26 June 2015, that the system should be immediately suspended, as they consider it unlawful.

Maurice Wren, the Chief Executive of the British Refugee Council, an ECRE member, said that the courts have recognised the Detained Fast Track appeals system as a ‘fundamentally unfair and grotesque caricature of British justice’ which is an important step to stop the government ‘arbitrarily and shamefully imprisoning some of the world’s most desperate people’.

The judgment follows a long campaign by Detention Action against the Detained Fast Track,-‘End the Fast Track to despair’- focusing on the injustice and unfairness it creates, as well as the psychological impact it has on asylum applicants who are detained. In recent months it has successfully challenged other aspects of the system. Its Director, Jerome Phelps, welcomed the judgment but was ‘shocked and disappointed’ that the system was not suspended, commenting that ‘the Court has judged that the severe potential consequences to asylum-seekers, including removal in breach of the Refugee Convention, are outweighed by  inconvenience to the Home Office’.

A government spokesperson has indicated that the Home Office intend to appeal.

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This article originally appeared in the ECRE Weekly Bulletin of 19 June 2015. You can subscribe to the Weekly Bulletin here.