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UK's fast-track asylum system ruled unlawful UK's fast-track asylum system ruled unlawful
(about 1 hour later)
The high court has declared the government’s fast-track appeal system for processing asylum applications unlawful. 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.
A judge ruled the system, which has been used for a decade to speed up the processing of asylum seeker claims, was “structurally unfair”. 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”.
Mr Justice Nicol, sitting in London, said the system must be quashed but put a stay on his order taking effect to give the lord chancellor and home secretary time to appeal. 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 ruling is a groundbreaking victory for the charity Detention Action, set up in 1993 to support and campaign on behalf of individuals held in immigration detention. The detained fast-track – as the Home Office calls the process – was first introduced in 2000 but has rapidly expanded in recent years.
The group states: “Many asylum seekers on the detained fast track are confused and distressed. Held in conditions equivalent to a high-security prison, they struggle to understand a complex procedure in an unfamiliar and hostile environment in which clear information is not always easily available. 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.
“Such circumstances pose considerable obstacles to asylum seekers’ ability to engage effectively with the asylum process. Time is always against the asylum seeker on the detained fast track.” 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 judge said in his ruling: “What seems to me to make the fast-track rules 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 [asylum seeker].” 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.
Although the judge declared the lord chancellor had acted outside his powers in imposing the fast-track appeal rules, he refused a plea by Detention Action for him to quash the system straight away. 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: “In my judgment it is right that I should grant a stay pending an appeal [by the Lord Chancellor] to the court of appeal.” 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.
Charlotte Kilroy, appearing for Detention Action, submitted to the judge that he had no power to impose a stay as that would allow the government to continue operating what he had just declared to be an unlawful system. That meant asylum seeker cases in the fast track would now have their applications processed unfairly. 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.”
Kilroy said: “They may be returned to countries from which they have come in breach of the UK’s obligations under the refugee convention and the European convention on human rights in circumstances where the highest standards of fairness apply.” 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 the judge refused her permission to appeal over the issue. Detention Action can still ask the appeal court itself to lift the stay.
Detention Action’s 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.
Related: ‘What crime have I committed to be held like this?’: inside Yarl's WoodRelated: ‘What crime have I committed to be held like this?’: inside Yarl's Wood
“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.” “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.”
Detention Action said the judgment would mean that the Home Office would no longer be able to assign asylum seekers to an accelerated appeals process in detention. 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?”
“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.” 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.”
A government spokesman said: “We are disappointed by this judgment and will be appealing. 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.”
Refugee Council chief executive Maurice Wren said: “Today the courts have recognised the detained fast-track appeals system for what it is: fundamentally unfair and a grotesque caricature of British justice.
“This is 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.”