On 2 July the Immigration Minister James Brokenshire announced the temporary suspension of the entire detained-fast track system.  Read the story of this amazing victory for justice.

Bit by bit, the many heads of the hydra that is the detained fast-track system have been cut off.  First, the way the system was operated was found to be unlawful.  Next, the appeals part of the process was found to be unlawful.  Last week, the appeal process of the fast-track system was finally suspended.  Today, James Brokenshire announced he was temporarily suspending the entire fast-track process.

What is the Detained Fast-Track?

The detained-fast track (DFT) is an accelerated process for considering asylum claims.  The Home Office designate claims to the process if they decide they are “straightforward” and so can be determined quickly, allowing them to detain the asylum-seeker throughout the asylum process with the intention of removing them as quickly as possible.

What’s wrong with the DFT?

Since its introduction in 2002, a cacophony of voices have called for the scrapping of a process that is manifestly unjust, unfair and inhuman.

Although the process was allegedly established to deal with asylum claims that could be decided quickly both positively and negatively, it was of course those claims that the Home Office wanted to summarily dismiss that ended up being channelled into a ‘fast-track to despair‘.

If the Home Office decides someone’s case should be put into the DFT category, the asylum-seeker will detained immediately after their asylum screening interview.  Within a matter of days, they will face their longer substantive interview – the basis on which the Home Office makes life-and-death decisions.  The day after that interview, the Home Office makes their decision on the asylum case (and in around 99% of cases, that decision is a refusal).  If they have a right to appeal that refusal in the UK, the applicant has just two working days in which to lodge their appeal.

Getting good legal advice and gathering the evidence you need in this time-frame is nigh on impossible. Perversely, refused asylum-seekers can also languish in detention for months after an appeal even though their cases have categorised as ‘fast-track’.

It is common for people who are not meant to be in the DFT category (such as torture survivors, women who are over 24 weeks pregnant, people with some severe medical or mental health issues) to be nonetheless detained in the fast-track system. This is partly because screening interviews are not being conducted with enough privacy or care, and so people claiming asylum do not feel able to share information which shows they are in the exempt categories.

When the Independent Chief Inspector of the UK Border Agency formally inspected the detained fast track system in 2011-2012, his report was critical of the screening process leading to people being detained in the fast-track system that shouldn’t be, but problematically assessed that the Home Office’s casework and decision-making was generally acceptable.  In that much used phrase, this assessment was based on the Kafkaesque nature of the system – the fast-track process doesn’t allow for people to gather evidence, get good legal advice, or have a fair chance of arguing their case.  For many people, they are detained very shortly after arrival in the UK and are still recovering from the persecution they have fled in their country of origin, or the many horrors of the journey to the UK.  In these circumstances, many detained in the DFT process could not possibly present their cases in a strong light, meaning refusals are inevitable. The DFT system accounts for a high proportion of the people removed from the UK, and this may explain the Home Office’s resistance to reform or abandon it, despite its injustice being demonstrated in the highest courts in the land, time and again.

Legal challenges

For some years, litigation arguing that the DFT system was fundamentally unfair was unsuccessful. Then, in July 2014 a legal challenge brought by Detention Action and represented by the Migrants’ Law Project, the High Court found that the DFT “as operated carries an unacceptably high risk of unfairness” to vulnerable or potentially vulnerable applicants. In the order of 25 July 2014, the High Court confirmed that the Fast Track “was to that extent being operated unlawfully.”  The lack of time to obtain legal representation was one of the key factors leading to the unlawful decision.

Despite this ruling, the court did not order that the system (ruled to have been operated unlawfully) to be suspended.  The Home Office’s response to this landmark judgment was to allow ‘four clear days’ between arrival at the detention centre and the substantive asylum interview, so that the asylum-seeker could seek legal advice.  These ‘four clear days’ did nothing to guarantee access to legal advice, however, and legal aid cuts and the way that legal aid in detention centres is restricted to certain firms mean it is extremely difficult to find a lawyer who will take on your case, even in the slightly relaxed time-limit imposed following the court’s decision.

A second blow

In December 2014, the Court of Appeal again found in Detention Action’s favour and ruled that the Home Office’s practice of detaining all asylum claimants with appeals pending to be unlawful.  This decision was made on the basis that the Home Office DFT appeals guidance did not meet the required standards of clarity and transparency.  The judge stated that the detention of refused asylum-seekers who pose no risk of absconding, in the DFT system, could not be justified.

The Tribunals (where the asylum appeals are heard) agreed to suspend appeals for two weeks over Christmas, but resumed them after receiving assurances from the Home Office that all the asylum-seekers with appeals pending in the fast-track system had been assessed as at risk of absconding.

Appeals process suspended

Last week, the Court of Appeal finally brought to an end the appeals process of the detained-fast track system.  The judgment earlier in the month that had led to this said the appeals process in the DFT:

looks uncomfortably akin to… sacrificing fairness on the altar of speed and convenience.

What this suspension of the appeals process would mean in practice for those currently detained was not at all clear.  The Court of Appeal’s order of suspension resulted from yet more legal wrangling from the determined Detention Action and their legal team after the appeals process was at first able to continue despite being found unlawful and ‘ultra vires’ (meaning the rules went beyond the authority of those responsible for setting them). 

Detaining the vulnerable

A successful legal challenge also highlighted the dangers the fast-track system posed to vulnerable asylum-seekers including torture survivors, trapped in a system that they were meant to be protected from in the first place.

The High Court ruled that putting vulnerable people through the detained fast-track was unfair, in a ruling that concerned four survivors of torture and 23 other linked claimants (also torture survivors).

Stephanie Harrison QC of Garden Court Chambers who led the litigation on behalf of the 27 individuals said:

From its inception, the Detained Fast Track system has been subject to controversy and concern because it sanctioned detention of asylum seekers for nothing more than administrative convenience. The courts have consistently found the fast track system to lack sufficient safeguards to prevent vulnerable groups being caught up in the system such as children and victims of torture and trafficking.

This successful challenge was based on evidence from the Helen Bamber Foundation and intervention by the Immigration Law Practitioners’ Association (based on evidence from its members).

Entire fast-track process suspended

In a statement issued on 2 July, Immigration Minister stated:

Recently the system has come under significant legal challenge, including on the appeals stage of the process. Risks surrounding the safeguards within the system for particularly vulnerable applicants have also been identified to the extent that we cannot be certain of the level of risk of unfairness to certain vulnerable applicants who may enter DFT.

In light of these issues, I have decided to temporarily suspend the operation of the detained fast track policy. I hope this pause to be short in duration, perhaps only a matter of weeks, but I will only resume operation of this policy when I am sure the right structures are in place to minimise any risk of unfairness.

Some people are already being released from the detained fast-track system following these successful legal challenges and in advance of the Minister’s statement.  Read about the women celebrating their release from Yarl’s Wood detention centre here.

The Minister’s statement said:

Every individual who was detained under the DFT policy and remains detained will have their detention urgently reviewed at senior level.

If you are detained in the fast-track process or know someone who is, seek legal advice about what your next steps should be.