High Court order: Detained Fast Track operating unlawfully, but no suspension

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The High Court has made a declaration, notified today, that the operation of the Detained Fast Track created an unacceptable risk of unfair determinations for vulnerable asylum-seekers who did not have access to lawyers sufficiently quickly.  To this extent, the Detained Fast Track was deemed to be operating unlawfully.

However, the Court has declined to order the Home Office to suspend the process or release asylum-seekers held in detention.

The order follows the landmark judgment, in a case brought by Detention Action, that the current operation of the Detained Fast Track was unlawful.

Detention Action had challenged the operation of the Detained Fast Track asylum process on the grounds that it is a fundamentally unfair and flawed process.  Detention Action argued that it creates a real risk that many asylum seekers with strong claims for protection are being sent back to face persecution or human rights violations.

Mr Justice Ouseley found that the manner in which the DFT was being operated “created an unacceptable risk of unfair determinations” for vulnerable or potentially vulnerable asylum-seeker who faced unjustifiable delays in being given access to lawyers.  The judge found that the Detained Fast Track was “to that extent being operated unlawfully.”

Since the judgment, the Home Office has agreed to allow asylum-seekers four clear days with their lawyer before their asylum interview.  The Court did not find that this would inevitably make the process lawful, but found that “it obviously reduces the degree of risk of unfairness.”  Mr Justice Ouseley decided that it was therefore unnecessary to take all asylum-seekers out of the Fast Track.   Likewise, he declined to order a delay on removals, concluding that “if an individual is being removed, it is for that individual to raise the point that his claim was processed too quickly for fairness.”

However, the judge rejected the Home Office’s argument that the unlawfulness had been resolved since the hearing in December 2013.  Mr Justice Ouseley found that the DFT was still being operated in a manner that was unacceptably unfair on 9 July 2014, the date of the judgment.

The High Court granted both sides permission to appeal.

Detention Action Director, Jerome Phelps, said:

“We are disappointed that the High Court has not ordered the suspension of a process which the Court has found to be ‘unacceptably unfair’ in its operation. Nevertheless, it remains hugely significant that Mr Justice Ouseley has found the operation of the Detained Fast Track to be unlawful.  We hope that this judgment and the improved access to legal advice will give a better chance of justice to vulnerable asylum-seekers who should never have been routed into the Fast Track.”

Sonal Ghelani, a solicitor at the Migrants’ Law Project, which acts for Detention Action, said:

“We would encourage all asylum-seekers whose cases have been heard on the Detained Fast Track to seek legal advice on what the judgment means for them.”