The Court of Appeal has today dismissed the Lord Chancellor’s appeal against the ruling of the High Court that the Detained Fast Track appeals process is unlawfully unfair to asylum-seekers.
The ruling is a blow to the government’s hopes of restarting the systemic detention of asylum-seekers, after Ministers suspended the Fast Track on 2 July 2015.
The Court of Appeal upheld the High Court order of 12 June 2015 quashing the procedural rules governing the Detained Fast Track asylum appeals process. Under the Fast Track Rules, appeals are processed according to severely truncated timescales while the asylum-seeker is in detention.
Following the High Court judgment and a further ruling of unlawfulness in a case brought by individual asylum-seekers, Minister for Immigration James Brokenshire announced on 2 July 2015 the suspension of the Detained Fast Track. He stated to Parliament his hope that the pause ‘would be short in duration, perhaps only a matter of weeks.’ Today’s ruling is likely to be a serious setback to this aspiration.
Giving the lead judgment, the Master of the Rolls Lord Justice Dyson found that the Fast Track Rules governing the appeals process are ‘systemically unfair and unjust’. This is because ‘the time limits are so tight as to make it impossible for there to be a fair hearing of appeals in a significant number of cases.’
Observing that ‘the consequences for an asylum seeker of mistakes in the process are potentially disastrous’, the Master of the Rolls concluded that ‘the FTR [Fast Track Rules] does not strike the correct balance between (i) speed and efficiency and (ii) fairness and justice. It is too heavily weighted in favour of the former’.
The suspension of the Fast Track means that asylum-seekers can no longer be detained throughout the asylum process on the grounds that their cases may be suitable for a quick decision.
Detention Action Director Jerome Phelps said:
‘The Detained Fast Track is a fundamentally flawed process. The courts have repeatedly found that it is structurally unfair towards people who are seeking protection in the UK. Despite repeated changes, it has continued to be unlawfully unfair. Asylum-seekers and the government have a common interest in a system that is both fast and fair. We hope that the government will work with civil society to find a different approach that does not sacrifice fairness on the altar of speed.’
The Home Office Minister Lord Bates yesterday revealed that 323 asylum-seekers had been released from the Fast Track since the suspension of the appeals process on 26 June, following the Detention Action judgment in the High Court.
Until the process was suspended, any asylum seeker, from any country, could be placed on the Detained Fast Track if the Home Office considered that their case could be decided quickly. The Fast Track was not restricted to cases considered weak or without merit. Many asylum-seekers on the Fast Track were from countries experiencing conflict or violence like Afghanistan and Sri Lanka.
The appeal was brought by the Lord Chancellor, with the Home Secretary as interested party. Former Lord Chancellor Chris Grayling was responsible for overseeing the introduction of the new Fast Track Rules in October 2014.