DFT Legal Challenge
For many years the Detained Fast Track (DFT), the system which has incarcerated asylum seekers as a matter of routine as they await the result of their application for protection in the UK, has been seen as implacable. Previous legal challenges to the DFT had failed to demonstrate unlawfulness, leaving the Home Office to believe that it could expand the scale and scope of the DFT as it chose. By 2013, almost one in five asylum-seekers were having their claims heard through a process with a 99% rejection rate.
Deeply concerned that asylum-seekers whose claims were being heard from detention were not being dealt with fairly – and that the decision to detain them was unreasonable, disproportionate and violates their right to liberty – Detention Action took the government to the High Court to challenge the Detained Fast Track.
Over the last year, we – and the wonderful legal team representing us, from the Migrants Law Project – have been in and out of the courts, coming to a dramatic conclusion in July 2015.
The High Court in July 2014 found that the Fast Track ‘as operated carries an unacceptably high risk of unfairness.’ Mr Justice Ouseley found a range of serious failings within the system, including inadequate screening for suitability, meaning that survivors of torture, victims of trafficking and other vulnerable people unsuitable for the DFT were not being adequately identified. The cumulative effect of the failings meant that the DFT was operating unlawfully.
The Home Office subsequently made a series of minor changes, including earlier allocation of lawyers.
Detention Action appealed to the Court of Appeal on a point that had not been considered by the High Court. We challenged the lawfulness of detaining asylum-seekers during their appeals purely on the grounds that their claims could be processed quickly, even where there was no risk of absconding. Speaking from the Court of Appeal in December 2014, Lord Justice Beatson upheld our appeal and ruled that the automatic detention of asylum-seeking appellants was also unlawful.
As a result, the Home Office undertook to assess all asylum-seekers, within the DFT, making appeals, and release those who were not at risk of absconding. However, it appears that they have been assessing the vast majority as absconding risks.
Following a further legal challenge by Detention Action, the High Court this month quashed the procedural rules governing the Detained Fast Track asylum appeals, under which appeals are processed according to very short timescales (seven working days from the initial refusal of asylum to the hearing of the appeal). Mr Justice Nicol concluded that the Fast Track Rules ‘do incorporate structural unfairness’, and are therefore ultra vires and unlawful. Crucially, the Fast Track Rules ‘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.’ This power of the Home Secretary to detain her opponent in an asylum appeal impinged on the minimum of required fairness and due process.
The government was granted permission to appeal and initially a stay on the effect of the order ruling the appeals process unlawful. This stay was lifted by the Court of Appeal on 26 June 2015. This meant the Home Office could no longer impose the excessively short Fast Track timescales on asylum appeals and that asylum seekers could no longer be detained throughout the asylum system simply for claiming asylum.
In a separate legal challenge, based on evidence from the Helen Bamber Foundation and intervention by the Immigration Law Practitioners’ Association, the Home Office conceded that it had acted unlawfully (again) by failing to identify vulnerable asylum seekers unsuitable for the DFT.
In a test case concerning four survivors of torture and 23 other linked claimants, the High Court ruled that the Home Office had breached its own rules, designed to ensure vulnerable asylum seekers – such as survivors of torture, sexual abuse and trafficking – were not detained and subject to an accelerated fast-track process.
In a statement issued on 2nd July, Minister for Immigration, James Brokenshire, announced the suspension of the Detained Fast Track asylum process in its entirety, specifically noting Detention Action’s litigation as a catalyst for the change:
“Recently the system has come under significant legal challenge, including on the appeals stage of the process. Risks surrounding the safeguards within the system for particularly vulnerable applicants have also been identified to the extent that we cannot be certain of the level of risk of unfairness to certain vulnerable applicants who may enter DFT. In light of these issues, I have decided to temporarily suspend the operation of the detained fast track policy.”
Listen to Advocacy Co-Ordinator, Susannah Wilcox, explain what the suspension meant for our clients in detention at the time.
There was further defeat for the government on the 29th July, when the Court of Appeal 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 proved a blow to the government’s hopes of quickly restarting the systemic detention of asylum-seekers, as promised by Minister for Immigration, James Brokenshire, following the Fast Track’s suspension on 2 July 2015.
On the 28th July, the Home Office Minister, Lord Bates, 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.
The end of the track for the DFT: on the 12th November, the Supreme Court refused the Government permission to appeal against the Court of Appeal judgement of 29th July 2015, which found the Detained Fast Track asylum appeal process to be ‘systemically unfair.’ This decision meant that the Government had no further right of appeal, and the Court of Appeal’s ruling was now definitive.
The Detained Fast Track as we knew it – a system which, at its height, was detaining one in four asylum seekers for the duration of their asylum claims and was registering 99% rejection rates in the assessment of these same claims – had been defeated. In the wake of this conclusive victory, Detention Action Director Jerome Phelps said:
‘After more than two years of litigation, we are delighted that the courts have now given a definitive verdict on an asylum detention system that has for many years been a stain on the UK’s reputation. We hope that the government will respect this judgement and seek alternative ways to process asylum claims quickly and fairly, so that no more asylum-seekers find themselves locked up simply for seeking sanctuary here.’
There’s no doubt that defeating the Detained Fast Track was a landmark legal human rights victory, but does it mean an end of the detention of asylum-seekers? In such a hostile political environment, will the Home Office seek to introduce a DFT II? You can read our thoughts, here.