2015 17 JUN
A fast-track immigration appeals procedure under which thousands of asylum seekers have been locked up each year has been declared unlawful by the high court.
Mr Justice Nichol said the process under which rejected asylum seekers arriving in Britain are detained and given seven days to appeal was “structurally unfair”.
The judge said the rules put asylum seekers “at a serious procedural disadvantage” and said it “looks uncomfortably akin to … sacrificing fairness on the altar of speed and convenience”.
The detained fast-track – as the Home Office calls the process – was first introduced in 2000 but has rapidly expanded in recent years.
The latest published figures, for 2013, show that 4,286 asylum seekers who were assessed to have “manifestly unfounded” claims were detained in Yarl’s Wood, Colnbrook or Harmondsworth detention centres under the scheme. This was a 72% increase over the number put through the detained fast track in 2012.
The high court ruling comes as the home secretary, Theresa May, considers the implementation of a manifesto commitment to extend a policy of “deport first, appeal later” to all immigration appeals and judicial reviews.
The high court case in part hinged on whether the immigration and asylum tribunal had any discretion over implementing the Home Office-imposed timetable for appeals when new rules were adopted last September and whether they were ultra vires, or without legal authority. Internal tribunal minutes showed that immigration judges expressed concerns that an inflexible timetable risked creating injustice.
The judge said lawyers representing asylum seekers were being expected to take instructions, prepare statements, translate documents, make bail applications, arrange expert witnesses and make representations to be taken out of the fast track – all within seven working days. The judge said the case histories presented showed that these time limits caused real, not just theoretical, difficulties.
The judge said the system should be quashed, but delayed his order taking effect to give the lord chancellor and the home secretary the opportunity to appeal against the decision.
The government said it was disappointed by the judgment and would appeal. A spokesperson said: “Detained fast-track is an important part of our immigration system. It contributes significantly to the speed and effectiveness with which asylum cases are processed – including swiftly removing those found not to be in need of protection – and saves the taxpayer money.”
Jerome Phelps, the director of Detention Action, which brought the legal challenge, said he was pleased that the appeals process had been found to be not just unlawful but also 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,” he added. “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, a survivor of torture from Zimbabwe who was released from the detained fast track this year and has since received refugee status, described the experience. “I felt completely helpless throughout my time on the detained fast-track but especially during my appeal,” he said. “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 British Refugee Council said the ruling represented “an important step forward in the battle to stop government officials arbitrarily and shamefully imprisoning some of the world’s most desperate people who have simply asked for our protection.”
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