The Court of Appeal has today ruled that a second element of the Home Office’s detained asylum process is unlawful. The Court found that the detention of asylum seekers who are not at risk of absconding whilst their appeals are pending is unlawful.
The ruling is the second Court of Appeal defeat in a week for the government’s immigration policy, following Monday’s ruling that the guidance on legal aid for immigration cases is unlawful.
Detention Action had challenged the lawfulness of detaining asylum-seekers during their appeals purely on the grounds that their claims could be processed quickly. We argued that asylum-seekers who are found to pose no risk of absconding should be released while their appeals are processed.
The ruling follows a judgement handed down by the High Court in July 2014, which found the operation of the Detained Fast Track to be unlawful.
The Court of Appeal upheld Detention Action’s appeal on the grounds that the policy on detaining asylum seekers during their appeals is not sufficiently clear and transparent. Further, the Court made an alternative finding that, on the material before it, the policy is not justified. Lord Justice Beatson found that:
“after the Secretary of State’s decision and pending appeal, detention in the fast-track by the application of the “quick processing” criteria cannot be said to be justified and is therefore not lawful”.
Lord Justice Beatson found that the evidence before the court:
“does not provide the sort of substantial fact-based justification that the Supreme Court… indicated would be needed to justify an interference with a fundamental right.”
The Home Office has indicated that it has begun re- assessing the detention of all asylum appellants currently going through the Fast Track. It has indicated that it will assess all asylum appellants on the Fast Track, and release all who are not at risk of absconding. It expects to have made those decisions by 19 December 2014.
Our Director Jerome Phelps said:
“We welcome this judgment. Depriving someone of their liberty for administrative convenience is a grave step under any circumstances. Asylum seekers making appeals are in a situation of enormous stress. Where there is no risk that they will abscond, keeping them locked up cannot be justified. Given that the Fast Track has now twice been found to be operating unlawfully, we urge the government to undertake a fundamental review of the whole process.”
Sonal Ghelani of the Migrants’ Law Project, the solicitor acting for Detention Action, said:
“It appears that the Home Office has been detaining asylum seekers unlawfully for their appeals for the last six years. It cannot be right or fair that the Home Secretary, as a party to an appeal, is entitled to detain her opponent when the effect of detention is to make the appellant’s conduct of the appeal much more difficult and therefore to make it less likely that he or she will be successful.”
You can read our full press release here.