Fast Track appeals process ultra vires but judgement stayed

The following is a press release from Detention Action:

The High Court has today declared the appeals process for asylum-seekers in detention to be unlawful. Mr Justice Nicol quashed the procedural rules governing the Detained Fast Track asylum process, under which appeals are processed according to severely truncated timescales.

However, despite this finding the judge nevertheless granted to the Lord Chancellor’s request to stay the ruling until his appeal is heard in the Court of Appeal, on the basis that for the order to take effect immediately would be ‘inconvenient’.

The judgement would mean that the Home Office would no longer be able to assign asylum-seekers to an accelerated appeals process in detention. Asylum-seekers would therefore no longer be detained throughout the asylum process simply for claiming asylum. But until the appeal is heard, asylum-seekers will continue to face an appeals system that has been found unlawful.

Detention Action is considering urgently appealing the order refusing the stay.

Mr Justice Nicol ruled that the Fast Track Rules ‘do incorporate structural unfairness. They put the Appellant at a serious procedural disadvantage… because his opponent in the appeal, the SSHD [Home Secretary], has decided that this is what should happen.’

He observed that ‘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. [The Tribunal Procedures Committee] 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.’

Mr Justice Nicol concluded that this ‘looks uncomfortably akin to… sacrificing fairness on the altar of speed and convenience.’

The High Court has now three times found unlawfulness in the Detained Fast Track following legal challenges by Detention Action. The High Court first ruled in July 2014 that the operation of the Detained Fast Track was at the time unlawful.

Then, on 16th December 2014 the Court of Appeal found that the detention of asylum seekers who were not at risk of absconding whilst their appeals are pending was unlawful. Yet still the Fast Track continues.

Detention Action Director Jerome Phelps said:

‘We are pleased that the Fast Track appeals process has been found not just unlawful but ultra vires. But we are shocked and disappointed that a stay has been granted, given that this is an area of law requiring the highest standards of justice and fairness. By granting the stay, it appears that the judge considers that the severe potential consequences to asylum-seekers, including removal in breach of the Refugee Convention, are outweighed by the inconvenience to the Home Office and Lord Chancellor of suspending the process.’

William is a survivor of torture from Zimbabwe who was released from the Detained Fast Track earlier this year and has since received refugee status. He said:

‘I felt completely helpless throughout my time on the Detained Fast Track but especially during my appeal. It was like fighting someone when they have put you in chains. You cannot move but nothing is obstructing them. What does it say about the British justice system that the Fast Track is still up and running?’

The defendants in the case are the Lord Chancellor, the First Tier Tribunal and the Upper Tribunal. Former Lord Chancellor Chris Grayling was responsible for overseeing the introduction of new rules for the Tribunals in September 2014. The Tribunal Procedures Committee, the judicial body responsible for drafting the new rules, had initially considered that the Fast Track Rules should be abolished as they risked creating injustice. However, following objections from the Home Office, the TPC ultimately recommended only minor changes.

For interviews and further information, please contact Jerome Phelps on 07906 813716 / jerome@detentionaction.org.uk



Notes to editors

· The Detained Fast Track is a process for deciding asylum claims whilst the asylum-seeker is in detention. It is designed for asylum claims that are considered to be suitable for a quick decision.

· Since 2008, the United Nations High Commissioner for Refugees has expressed concern about the operation of the UK’s Detained Fast Track process in published audits of the DFT.

· 4,286 asylum-seekers were detained on the Fast Track in 2013, an increase of 73% on 2012. 31,433 people claimed asylum in the UK in 2013.

· Detention Action is a charity working with people held in immigration detention and campaigning for detention reform.

· Nathalie Lieven QC and Charlotte Kilroy, instructed by the Migrants’ Law Project, represent Detention Action.

High Court finds that the operation of the Detained Fast Track asylum system is unlawful

In a landmark ruling in a case brought by Detention Action, the High Court has today found that the way the government operates the Detained Fast Track asylum system is unlawful.

In a judgment between Detention Action and the Secretary of State for the Home Department, with the Equality Human Rights Commission as an intervener, handed down on 9 July 2014, the Judge (Ouseley J) ruled that ‘the DFT as operated carries an unacceptably high risk of unfairness.’

The Judge highlighted failings in the Fast Track system and made suggestions as to how they might be remedied, but found that these did not by themselves lead to the system being inherently unlawful. However, the Judge said that lawyers were instructed too late and there was an unjustified period of activity between induction of the asylum seeker into the system and the allocation of lawyers, this was unfair and can be remedied by instructing lawyers earlier in the process.

However, even if the Home Office allows for earlier instructions of lawyers the other deficiencies in the system may still mean that there are instances of unfairness in individual cases.

Please read the press release from Detention Action for further information on the judgement and the Fast Track process.
Detention Action DFT Press Release copy 2Detention Action DFT Press Release copy

Campaign to end detention of refugee and asylum-seeking children

A campaign to urge States to pledge to end the detention of refugee and asylum-seeking children took place during a Ministerial meeting of UN Member States 7 – 8 December. Those involved in the campaign includes 50 NGOs including ECRE Members, national Amnesty International sections and IDC Members in Austria, Belgium, Bulgaria, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Ireland, Netherlands, Norway and Poland.

Unsurprisingly, the UK government does not support the campaign.

All those that do firmly believe that children, and in particular unaccompanied or separated children, should never be detained solely for immigration purposes given that immigration detention cannot be said to be in their best interests.

The campaign continues.

Lindholme Immigration Removal Centre Closure

Lindholme IRC, located approximately 10 miles north of Doncaster, is part of Lindholme Prison and is run by the Prison Service. The UK Border Agency leased the centre in 2000 in order to detain adult males over the age of 21. Following a request by the Prison Service for the UK Border Agency return Lindholme IRC back to them a managed reduction in the numbers of detainees will take place during a wind-down of the centre. The aim is to close the centre by 31 January 2012.

Detainees will not be released, but will instead be transferred to other centres.

Campsfield Detention Centre Suicide

According to fell detainees, a man who was about to be deported has killed himself at Campsfield House. The 35 year old hanged himself in a toilet block hours before he was due to be forcibly removed. The Home Office confirmed that a 35-year-old man had died stating:

"The UK Border Agency is in the process of contacting his family and our sympathies are with them at this time. The police and prisons and probation ombudsman are investigating the matter, as is the norm, and we are cooperating fully with their investigations."

Campsfield House holds 200 asylum seekers and foreign prisoners and was the scene for protests in the past over conditions and the length of detention and method used to force returns. These are ongoing concerns for all detention centres and it is unfortunately not the first time that a detainee has committed suicide or suffered due to the method of forced removals which often involves dangerous and inappropriate techniques. Changes are long overdue.

Italy and the Detention of Migrants

The Court of Justice of the European Union (CJEU) ruled that Italy is in breach of EU law, and in particular the Returns Directive, by administering up to 4 years of imprisonment for third country nationals illegally staying in Italy who have received an order to leave.

Where the Returns Directive allows for the use of detention, it must always be for the purpose of enforcing a return decision. The detention period must be as short as possible, and never exceed 18 months.

The judgement can be found here.

Detention of Asylum Seeking Children

The Deputy Prime Minister, as part of his speech to mark the 60th anniversary of the United Nations Convention Relating to the Status of Refugees and the formation of the Refugee Council in the UK, said the policy of detaining children has stopped.

While, the Children's Society produced a new research report called ‘What Have I Done? The experiences of children and families in UK immigration detention' which examines the experiences of 32 families detained prior to the pledge to end the detention of children.

It emphasises the importance of safeguarding issues around the use of detention and the impact to children, some of the experiences collected include:

  • Children witnessing traumatic events, including hunger strikes and suicide attempts and the use of restraint on their parents.
  • High levels of stress, fear, confusion, and feelings of hopelessness and degradation experienced by family members in detention.
  • Many children did not eat, or lost weight, during detention. Families had medication removed upon arrival or missed important medical appointments as a consequence of detention. One child was detained for a second time despite suffering from post traumatic stress disorder after her first detention.
  • The majority of children experienced emotional distress during detention, including sleeplessness, nightmares and constant crying.
  • After release from detention, the majority of families experienced on-going and persistent effects on their mental and emotional health.

You can find the report, and more about the Children's Society, at their website here.

UK Torture Inquiry

David Cameron opened an inquiry to establish whether the British Government and its intelligence agencies were involved in improper treatment of detainees held by other countries, and if so, to what extend.
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Child & Family Detention

The deputy prime minister, Nick Clegg, faces fresh embarrassment today over a new Home Office postponement of the pledge to end the detention of children in immigration removal centres. Read More...