Detained Fast Track litigation update
The yard at Harmondsworth is full of people. They are refusing food and peacefully occupying the yard as a protest against their treatment. A statement posted on the internet on behalf of ‘we the detainees of Harmondsworth immigration centre’ demands that ‘all the detainees on fast track process are removed from fast track’, as ‘it isn’t a crime to seek asylum’.
Asylum-seekers in Harmondsworth cannot understand why they are still going through the Detained Fast Track asylum process when the court has ruled it to be operating unlawfully. That ruling was followed last week by the report of the Parliamentary inquiry into detention, which called for a time limit on detention of 28 days and an end to the presumption of detention on the Fast Track.
Nevertheless, the courts are inching closer to acknowledging the protesters’ demands. On Friday, the High Court granted permission in the latest stage of Detention Action’s legal challenges to the lawfulness of the Detained Fast Track asylum process. Mrs Justice McGowan granted permission to proceed with our judicial review of the Lord Chancellor’s decision to allow Fast Track appeals to continue despite the Court of Appeal’s decision late last year that the Home Office policy to detain people, as a matter of course, for their appeals was unlawful.
On 30 October 2014, the Court of Appeal heard our case that the automatic detention of asylum-seekers making appeals on the Fast Track was unlawful. The Home Office was detaining asylum-seeking appellants on the basis that their appeals could be processed quickly, although it was altogether unclear why this required their detention. On 16 December 2014, the Court of Appeal found that detention of appellants under the ‘quick processing criteria’ was unlawful as it failed to satisfy the requirements of clarity and transparency. Lord Justice Beatson made clear that, had it been necessary to decide the point, he would have found that detention could also not currently be justified.
The Court of Appeal issued an order requiring that the Home Office assess each appellant on the Fast Track, and only detain those who are considered at risk of absconding. The Home Office hastily assessed all asylum-seekers going through the appeals process, and released eight people. However, since then less than 4% of asylum-seeker appellants have been released, although asylum-seekers in the community are rarely detained as absconding risks.
We wrote to the Tribunals asking them to suspend the Fast Track appeals process, as its ongoing operation according to the Fast Track Rules is irrational in the light of the Court of Appeal judgment. The Tribunals agreed to suspend appeals for two weeks over Christmas, but resumed them after receiving assurances from the Home Office that all appellants had been assessed as at risk of absconding.
The High Court will now have to decide whether it is rational and within the power of the Rules for the Tribunals to continue to process Fast Track appeals when the sole basis for an appeal being on the Fast Track is the decision of the Home Office that the person is an absconding risk. We are arguing that the risk of absconding has nothing to do with the suitability of an appeal for accelerated processing, and it is altogether unjust for the Home Office, as a party to the appeal, to be the body that makes that decision. In what other legal process can one party to an appeal detain the other, making it much more difficult for them to pursue their case?
The Court of Appeal ruling last December followed an earlier decision by the High Court in July 2014 that the operation of the Fast Track had been so unfair as to be unlawful. Mr Justice Ouseley accepted our argument that there were flaws in the safeguards designed to prevent vulnerable people from being wrongly fast tracked, and found that the lack of adequate early access to legal advice was the crucial failing that tipped the system into unlawfulness. The Home Office took immediate steps to allow asylum-seekers on the Fast Track to have four working days with their lawyers before their interviews. This time allows them to gather and present evidence that they should not be on the Fast Track, enabling some to be released.
However, serious questions remain as to whether the safeguards are operating adequately to render the process lawful. It is significant that both the High Court and the Court of Appeal refused to find that the steps taken by the Home Office had rendered the process lawful. Eleven linked judicial reviews will test whether the safeguards are still failing vulnerable people to the extent of unlawfulness.
The High Court has scheduled a case management review hearing for 19 March 2015, to consider the process for hearing our case and those of the eleven individual asylum seekers. Only after this will we, and the people in the yard at Harmondsworth, know the date of the hearing that will determine the immediate future of the Fast Track.
Nathalie Lieven QC and Charlotte Kilroy are counsel for Detention Action. Sonal Ghelani of Migrants’ Law Project is our solicitor.