The Fast Track is dead

Until July 2015, the UK was responsible for the largest-scale systematic detention of asylum-seekers in Europe.  Any asylum-seeker whose claim was considered by the Home Office ‘suitable for a quick decision’ was taken straight to a high-security detention centre, usually Harmondsworth or Yarl’s Wood.  Locked up in a cell, subject to draconian deadlines, the vast majority were quickly refused asylum, and quickly removed.

As I have previously described, it was a system that worked for the Home Office.  There was no will to examine whether its manifest flaws were depriving asylum-seekers of justice.  For twelve years, people from some of the most dangerous countries on earth were detained, refused asylum and, in short order, sent back.

This came to an end last July.  The Court of Appeal upheld the legal challenge by my organisation, Detention Action, finding that the process was ‘systemically unfair and unjust’.  The Home Office conceded a second case, brought by individual survivors of torture and trafficking, admitting that it had unfairly imposed the Fast Track on them.  The Immigration Minister James Brokenshire had little option but to suspend the process.

The suspension was always intended to be temporary – indeed, the Minister hinted that the Fast Track could be back within ‘a matter of weeks’.  Plans were quickly afoot for a ‘DFT2’.  I described at the time the limitations of strategic litigation in preventing Government from doing something it really wants to do.

It seems I was wrong.

After meeting with us, the Immigration Law Practitioners Associations and theLaw Society, a little-known judicial body called the Tribunal Procedures Committee has sent a letter to the Home Office, which appears to ring the death-knell of the Fast Track.

Some background.  This was not the first time that we had challenged the Fast Track.  The first time and the second time that our litigation persuaded the courts to find the operation of the Fast Track to be unlawful, the Home Office merely tweaked it with small changes, leaving us back at square one.  We still thought that the Fast Track was fundamentally unfair, but we would have to start again with fresh litigation after each rearrangement of the furniture.

So our final legal challenge attacked not the iniquities of Home Office practice, but the legal architecture: the Fast Track Rules.  These were the Tribunal rules under which asylum-seekers in detention, chosen by the Home Office, would have less time to appeal against the decisions of the Home Office than if they were in the community.  It was the Fast Track Rules that the Court of Appeal ruled unfair and unlawful.

Judicial rules cannot be tweaked, and certainly not by the Home Office.  There is a designated judicial body, the Tribunal Procedures Committee, which is responsible for drafting the rules for tribunals in all areas of law.  So it was to the TPC that the Home Office went, with its proposal for a new set of Fast Track Rules.

The political pressure on the TPC must have been intense.  Ministers have repeatedly made clear the importance they attach to a Fast Track.  Few of us doubted that a way would be found for new Rules to restart the Fast Track.

Not so.  In a courageous display of judicial independence, the TPC has politely declined to create new Fast Track Rules.  Without Fast Track Rules, there is no Fast Track appeals process, and no Fast Track.

True, the TPC has left open the possibility of creating Fast Track Rules in the future.  But it has set the Home Office a series of tests: clear and workable criteria for who goes onto the Fast Track, evidence to justify fettering the discretion of judges to set timescales case-by-case, and evidence that the current approach is not working.  It appears unlikely that these tests can be met, now or in the future.

In the meantime, the longer there is no Fast Track, the stranger it begins to appear in retrospect, and the more difficult it becomes for the Home Office to justify its relaunch.  The proposed new Fast Track would have been, explicitly this time, for weak asylum claims – but there is already a separate process for claims the Home Office believes to be weak.  People whose cases are considered ‘manifestly unfounded’ are certified by the Home Office and removed without right of appeal – although they can challenge this certification through judicial review.  It is hard to see how the Home Office can justify creating a second process, for claims that are weak but not manifestly unfounded, given the difficulties that they have had in identifying weak cases at all.

The Home Office can also still process asylum claims in detention, where the person claims asylum after being detained.  However, without a Fast Track appeals process, asylum-seekers in detention whose cases are not ‘manifestly unfounded’ are, generally, released before their appeals are heard.

Even this reduced asylum detention is subject to legal challenge.  Judgement is pending in a case called Hossein and Others, which challenges the continuing inadequacy of Home Office procedures for identifying vulnerable people who should not be detained during the asylum process.  Distressed and mentally ill people are particularly likely not to claim asylum until they are picked up, and therefore to end up having their asylum considered in detention.  The Stephen Shaw inquiry into welfare in detention, set up by the Home Secretary, is only the most recent body to condemn the detention system’s failures to identify and safeguard vulnerable people.

So it would be something of an understatement to record that asylum detention is in a mess.

This leaves two options for the Government.  It can continue defending the ever-diminishing legal space for detaining asylum-seekers.  The current asylum detention is likely to face more and more individual legal challenges, until the identification of vulnerable people is ‘solved’, a distant prospect.  It can continue to operate a system that it knows doesn’t work, in which most appellants get released anyway, in order to gather evidence to try again to persuade the TPC to give it new Fast Track Rules.

Or it can take a different approach by investing in making the asylum process fast and fair for everyone.  The Fast Track processed asylum claims quickly, an objective that in principle no-one would disagree with.  Partly, this was achieved through systemic unfairness – this unfair boost is gone for good.  Apart from that, it is by no means clear that detention helped speed up the process.  Currently, the volume of litigation suggests the opposite.  In fact, part of the speed of the Fast Track came from just investing in putting lots of caseworkers there, dedicated to processing cases quickly.

Indeed, quietly forgetting the Fast Track would be entirely consistent with the Government’s wider strategy for detention.  The Minister has broadly agreed to the Shaw Review’s criticisms of the over-use of detention, and indicated that further reductions in the detention estate are on the horizon.  The trend is towards using detention for shorter periods, in order to remove people only.  Even at its peak, the Fast Track would leave asylum-seekers in detention for weeks and months.  It is simply incompatible with the leaner, more efficient detention system promised by the Minister.

Detention is expensive, caseworkers much less so.  Yet it is the caseworkers, trained and resourced to do their jobs effectively, that are the basis of a quick and fair asylum process.  Austerity is squeezing budgets, in the Home Office as everywhere in government.  Yet the detention reform process, already commenced, could generate the savings that could increase case working capacity.

The Fast Track has gone.  The Home Office needs to let go, and invest the savings in a fast, high quality asylum process in which there is no need for a Fast Track.