Case Study – the Detained Fast Track
October 2015
The MLP’s work has been instrumental in the suspension of the Detained Fast Track through our work with Detention Action. Over the past two years, the MLP has represented, and continues to represent, Detention Action, an NGO which supports people in detention and campaigns for change, in bringing a challenge to the Detained Fast Track system operated by the UK government.

Even where an NGO has lawyers employed to carry out policy advocacy and to ensure that the NGO complies with its duties to service users, for the most part they will not have contracts with the Legal Aid Agency to undertake the legal advice and representation for individual clients nor do they have the required professional indemnity insurance to carry out litigation.

Therefore, the work done in this case was dependent upon the MLP providing these practical necessities, as well as the specialist legal skills and experience of the MLP solicitors and the use of their wide network of contacts in the sector. This case study illustrates how the MLP can add substantial value to the work of NGOs such as Detention Action to create effective change to policy and practice.

Background
There has been considerable concern about the fairness of this process for over 10 years. The Detained Fast Track (DFT) was introduced in 2000 to deal with unprecedented numbers of asylum claims at the time. The premise was that those with ‘simple’ cases would be detained for a short period of time in a low security setting in order to enable the government to more quickly decide claims for asylum. People were detained even though they posed no risk of absconding or any other adverse consequences for the wider community. At that time, 80% of asylum seekers were released from the DFT after the Home Office had made its decision on their asylum claim, which was usually a refusal. The asylum seeker could then pursue his or her appeal in the community in the normal way, and so, although they were detained, asylum seekers in the DFT were not subject to unusual unfairness when seeking protection in the UK.

Subsequently, the scope of the DFT expanded and, since March 2003, a significant number of people have been detained from the start of their claim through to the determination of their appeals and then to removal, all within a very limited timescale. The DFT as it operated in 2012 was therefore very different from the way it was said to operate in 2000. Detention Action argued that the way the DFT was operating was unlawful and that the safeguards within the system to mitigate unfairness were ineffective. Issues of concern included the fact that it was very difficult to screen for vulnerable individuals who may be re-traumatised by detention, such as torture survivors or trafficking victims; that those with complex cases did not get a fair hearing; that there was insufficient access to legal representation; and that the process did not provide enough time for detainees to properly present their cases including at the appeal stage. These concerns were echoed by very many of those who work with people held in the DFT. In 2013 over 2,500 individuals were detained in the DFT and 99% of the applicants had their applications refused by the Home Office. Of those who appealed between April 2013 and September 2013, 93% had their appeals dismissed.

Working with Detention Action
Despite strong policy advocacy and campaigning work, Detention Action and other NGOs had been unable to persuade the government to make substantive changes to the DFT. The MLP had been considering the operation of the DFT in a case involving an individual claimant, whose claim could not proceed as a test claim due to the individual’s circumstances.  Preliminary work with Detention Action involved detailed discussion about the most effective legal strategy for challenging the DFT. It was agreed that Detention Action should be the claimant in the case. The MLP worked with Detention Action to collate evidence regarding the deficiencies it had identified with the DFT.

The MLP then worked with a wide coalition of groups and legal practitioners to build a strong case, using evidence from a range of actors about the operation of the DFT on the ground which argued that the operation of the DFT was unlawful on the grounds that:
– the process as it worked was unfair and unlawful because it did not afford asylum seekers a proper opportunity to present their claims for asylum and none of the safeguards worked effectively; and
– detention within the DFT was unlawful in English law and contrary to article 5 of the ECHR.

Dealing with technical and costs issues
Since Detention Action is an organisation it could not raise points arising out of the European Convention of Human Rights (ECHR) because it is not a ‘victim’ within the meaning of the Human Rights Act. The MLP and counsel considered that raising the right to liberty as guaranteed by article 5 of the ECHR was important to the case. The MLP successfully approached the Equality and Human Rights Commission (EHRC) to request that it applied to intervene in order to raise this issue. Another important part of the MLP’s preparatory work was to assist Detention Action in obtaining a Protective Costs Order, which enabled Detention Action to act as the claimant in the case with greatly reduced financial risk.

The first court case
Once the grounds for the challenge were established, the MLP issued a claim for Judicial Review on behalf of Detention Action. The case was heard in December 2013 in the High Court and judgment was handed down in on 9th July 2014. The court found that the DFT, as it was operating at that time, carried such a high risk of unfairness as to be unlawful. Despite this, at a second hearing on 25th July, the judge declined to make any orders about the following: prohibiting the processing of cases in the DFT until the issues raised by the case were resolved; suspending the operation of the DFT until action was taken to resolve the issues raised in the case; and prohibiting the removal of persons whose cases were processed in the DFT until they had the chance to seek legal advice. However, the judge did state that he expected the Home Office to give legal representatives 4 clear days to prepare cases for clients in the DFT, and for the immigration tribunals to consider the lawfulness of the operation of the DFT.

After that 25th July Order was made, the MLP continued its work with relevant organisations to ensure that the implications of the order were understood, including providing briefings, seminars, and acting as a resource for enquiries, and to examine next steps to ensure that the ruling could be used to effect real change.

Having consulted with partners, it was decided to appeal the 25th July Order, on the grounds that the judge had erred in: refusing to grant Detention Action the order to prevent the Home Office from continuing to process individuals in the DFT; refusing to grant the Detention Action an order to prevent the Home Office from removing those individuals who had already been processed in that unlawful system from the UK before they had had a proper opportunity to seek legal advice; not granting Detention Action the order that the Home Office was unlawfully detaining individuals in DFT following a negative decision on their asylum claim and pending their appeals to the First-Tier Tribunal. The MLP also began working with Detention Action to gather information about how legal representatives were able to work with detained clients in the light of the Order of 25 July, including setting up an online forum to gather information, to ensure that the changes to practice ordered by the court translated into concrete change.

The appeal was dismissed on the first two grounds on 9th October 2014. Although this was disappointing, crucially, the Court of Appeal refused to make a finding that the process was operating lawfully by then – something which the Home Office had urged the Court to find.

Judgment was handed down on 16th December 2014 with regards to the third ground for appeal. The Court of Appeal found that the Home Office’s policy of detaining people in the DFT, for its administrative convenience, after the refusal of their asylum claim but pending their appeal was unlawful because it did not meet the criteria of clarity and transparency and it was also not justified on the evidence that the Home Office had produced. This meant that all those in the DFT who were not at risk of absconding had to be released. Those who are assessed by the Home Office to pose a risk of absconding could be detained on its general detention criteria but not on the basis that the appeals were suitable for the DFT.

The second court case
The MLP then represented Detention Action in further litigation because the Immigration Tribunals, who decide on appeals against initial refusals of protection by the Home Office, refused to suspend the hearing of the appeals under the Fast Track Rules despite the Home Office’s policy to detain people pending their appeals was found unlawful in December 2014. In this claim it was the Tribunals (First Tier and Upper) and the Lord Chancellor who were the defendants rather than the Home Office.  The hearing of that claim took place on 19th May 2015 and judgement was handed down on 12th June 2015, finding that the Fast Track Rules were unlawful. However, the judge granted the Lord Chancellor’s application for a “stay” or a stop on his order thus enabling the Tribunals to continue determining appeals even through the Rules under which they were doing so had been found to be unlawful.  The MLP represented Detention Action in an urgent appeal against this ruling and Detention Action was successful in its appeal leading to a suspension of appeals being decided under the unfair and unlawful rules meaning that appeals against asylum decisions needed to be taken under the general asylum appeals rules. The government appealed to the Court of Appeal on an expedited basis, and judgment was handed down on 29th July 2015; its appeal was dismissed  , with the court ruling that the operation of the Fast Track Rules was in fact unlawful:

“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. ”

Concrete change
As a result of the ongoing litigation, the entire DFT was suspended on 2nd July 2015 by the Immigration Minister, James Brokenshire. In the wake of the government’s unsuccessful appeal, it remains suspended. To date, over 300 individuals have been released from detention; those who continue to be detained are having their claims and appeals decided through the general rules for asylum and immigration, which are fairer than DFT rules. The Lord Chancellor’s application for permission to appeal to the Supreme Court was refused by the Court of Appeal but he has renewed the application to the Supreme Court itself and the outcome of that application is awaited.

In addition, the MLP’s work on this issue led to the following substantive improvements over the past two years:
• The DFT has, for the first time, been declared unlawful and the Home Office must now make changes to the way the system operates.
• Those not at risk of absconding must be released.
• DFT appeals were suspended for a short period in the First Tier Tribunal of the Immigration and Asylum Chamber;
• The Home Office must now provide 4 working days’ notice of the asylum interview to legal representatives.
• As a result of this work around the DFT, the Helen Bamber Foundation (which works with torture survivors and trafficking victims) has experienced a sharp rise in requests from legal representatives seeking to make referrals to that organisation. This sharp increase has created serious pressure on HBF’s resources and the MLP has been working closely with the HBF to discuss the best strategy to deal with the pressure on HBF in a way which complements the ongoing work that the MLP is conducting regarding the DFT. However, these referrals also mean that vulnerable individuals are being removed from the DFT so that they can access treatment to overcome their trauma.
• The Home Office is being forced to engage: following the High Court judgment on 9 July 2014, the Home Office invited NGOs to regular meetings the first of which took place in August, with a further meeting in November and more meetings planned. The MLP has attended pre-meetings with the NGOs and those legal representatives who choose to attend to ensure that they are fully briefed regarding the judgments and the further work that is ongoing.