The MLP currently represents Detention Action which is challenging the policy and practice of detaining asylum seekers for the determination of their claims within the Detention Fast Track process (DFT).
Summary of the case
Since its introduction in 2000, the DFT has expanded in scope so that people are now detained from the start of their claim through to the determination of their appeals. Detention Action is arguing that the DFT as it now operates is very different from the way it was said to operate in 2000. It also argues that the way the DFT now operates is unfair and that the safeguards to address any unfairness are ineffective. There has been significant progress in this case, leading, in July 2015, to the suspension of the whole Detained Fast Track process, which followed judgments which led to the suspension of the appeals process within the DFT, and other important changes to the way the process operated. Please see below for a timetable of changes to this system of detention.
Home Office appeal not allowed: 29th July 2015
Following the judgment of 26th June 2015, which led to the suspension of appeals within the DFT due to the Fast Track Rules being found ultra vires, the Home Office appealed the ruling at the Court of Appeal. The appeal was not allowed by the Court of Appeal, and the appeals process remains suspended. The ruling can be found here.
Lord Dyson ruled that “The system is…structurally unfair and unjust. The scheme does not adequately take account of the complexity and difficulty of many asylum appeals, the gravity of the issues that are raised by them and the measure of the task that faces legal representatives in taking instructions from their clients who are in detention…the consequences for an asylum seeker of mistakes in the process are potentially disastrous. That is why section 22(4) of the [Tribunals, Courts and Enforcement Act 2007] recognises that justice and fairness should not be sacrificed on the altar of speed and efficiency. As I have explained, the FTR [Fast Track Rules] do not strike the correct balance between (i) speed and efficiency and (ii) fairness and justice. It is too heavily weighted in favour of the former and needs to be adjusted. ”
Parliamentary question on the release of detainees: 20th July 2015
Parliamentary question confirms over 300 asylum seekers have been released from the Detained Fast Track since the ruling of 26th June 2015, which led to the suspension of the Fast Track Rules.
Ministerial statement: 2nd July 2015
In a written statement to parliament, Immigration Minister James Brokenshire confirmed that the entire Detained Fast Track Process will be suspended. The statement can be found here. This is the first time, since its introduction in March/April 2000, that the system of detaining asylum seekers for the Government’s administrative convenience has been halted in its entirety. More information, updated regularly, can be found on our News page, and we will keep MLP Forum members updated on developments.
Judgment: 12th June 2015
The High Court ruled that the Fast Track Appeals Rules are unlawful. The judgment is available here.
The judge did not order that the Rules be suspended. Detention Action, represented by the MLP, appealed this, and judgment was handed down in the Court of Appeal suspending the operation of Detained Fast Track appeals.
Judgment: High Court – 9th July 2014
Mr Justice Ouseley, giving judgement in July 2014, found that there are “serious failings” in the system, particularly long delays in detainees obtaining access to legal advice and representation as a result of which “the DFT as operated carries an unacceptably high risk of unfairness.” Read the full judgement
On 25th July Mr Justice Ouseley made an Order declaring that as at 9th July 2014 (the date judgement was handed down), the Detained Fast Track (DFT) process was operating unlawfully for vulnerable or potentially vulnerable asylum seekers who had not had sufficiently speedy access to lawyers for advice before the substantive asylum interview.
The Home Office was ordered to pay Detention Action’s legal costs and both the Home Office and Detention Action have been granted permission to appeal to the Court of Appeal.
Judgment: Court of Appeal
Judgment was handed down in December 2014 in the Court of Appeal, finding that asylum seekers who pose no risk of absconding should not be held in the Detained Fast Track pending their appeals. Detention Action, represented by the MLP, argued that asylum-seekers who are found to pose no risk of absconding should be released while their appeals are processed.
Briefing notes for practitioners can be found here
Tools and pro formas
Tools and pro formas relevant to this work can be found here