The High Court has today declared the appeals process for asylum-seekers in detention to be unlawful. Mr Justice Nicol quashed the procedural rules governing the Detained Fast Track asylum process, under which appeals are processed according to severely truncated timescales.
However, despite this finding the judge nevertheless granted to the Lord Chancellor’s request to stay the ruling until his appeal is heard in the Court of Appeal, on the basis that for the order to take effect immediately would be ‘inconvenient’.
The judgement would mean that the Home Office would no longer be able to assign asylum-seekers to an accelerated appeals process in detention. Asylum-seekers would therefore no longer be detained throughout the asylum process simply for claiming asylum. But until the appeal is heard, asylum-seekers will continue to face an appeals system that has been found unlawful.
Detention Action is considering urgently appealing the order refusing the stay.
Mr Justice Nicol ruled that the Fast Track Rules ‘do incorporate structural unfairness. They put the Appellant at a serious procedural disadvantage… because his opponent in the appeal, the SSHD [Home Secretary], has decided that this is what should happen.’
He observed that ‘by allowing one party to the appeal to put the other at serious procedural disadvantage without sufficient judicial supervision, the Rules are not securing that justice be done or that the tribunal system is fair. [The Tribunal Procedures Committee] could not impinge on the minimum level of fairness or the irreducible minimum of due process bearing in mind the appropriate degree of fairness that asylum appeals require. For these reasons, in my judgment, the Fast Track Rules were ultra vires.’
Mr Justice Nicol concluded that this ‘looks uncomfortably akin to… sacrificing fairness on the altar of speed and convenience.’
The High Court has now three times found unlawfulness in the Detained Fast Track following legal challenges by Detention Action. The High Court first ruled in July 2014 that the operation of the Detained Fast Track was at the time unlawful.
Then, on 16th December 2014 the Court of Appeal found that the detention of asylum seekers who were not at risk of absconding whilst their appeals are pending was unlawful. Yet still the Fast Track continues.
Detention Action Director Jerome Phelps said:
‘We are pleased that the Fast Track appeals process has been found not just unlawful but ultra vires. But we are shocked and disappointed that a stay has been granted, given that this is an area of law requiring the highest standards of justice and fairness. The Court has judged that the severe potential consequences to asylum-seekers, including removal in breach of the Refugee Convention, are outweighed by the inconvenience to the Home Office and Lord Chancellor of suspending the process.’
William is a survivor of torture from Zimbabwe who was released from the Detained Fast Track earlier this year and has since received refugee status. He said:
‘I felt completely helpless throughout my time on the Detained Fast Track but especially during my appeal. It was like fighting someone when they have put you in chains. You cannot move but nothing is obstructing them. What does it say about the British justice system that the Fast Track is still up and running?’
The defendants in the case are the Lord Chancellor, the First Tier Tribunal and the Upper Tribunal. Former Lord Chancellor Chris Grayling was responsible for overseeing the introduction of new rules for the Tribunals in September 2014. The Tribunal Procedures Committee, the judicial body responsible for drafting the new rules, had initially considered that the Fast Track Rules should be abolished as they risked creating injustice. However, following objections from the Home Office, the TPC ultimately recommended only minor changes.