Asylum seekers to be released after the Government announces suspension of the fast-track detention
Following the Administrative Court’s judgment last month (Detention Action v First-tier Tribunal (Immigration and Asylum Chamber) and Others [2015] EWHC 1689 (Admin), also see our recent blog article published by Gherson shortly after the judgment: Administrative court finds asylum fast track procedure unlawful) when Nicol J declared that the fast-track rules “do incorporate structural unfairness”, the Home Office was finally forced to suspend the Detained Fast Track (DFT) system on 2 July 2015 after the Court of Appeal ruled that the DFT must stop immediately. It has put the end to a
“legal stay” – a temporary delay imposed by Nicol J, which meant that the DFT remained in operation. However, Lord Justice Sullivan declared, “…if cases continued to be dealt with by the system, there would be an obvious risk for more appeals, which would be a ‘very horrible waste of money‘”.
After a series of legal battles in recent years to contest the legitimacy of the DFT, the outcome of the latest judgment was of course a delightful victory for the asylum seekers and campaigners for their rights, in particular the Detention Action charity, which brought the successful legal claim. The Detention Action Director stated that the DFT “has been found to be unlawful three times by the British courts…” thus its suspension “is a further step away from the systematic overuse of detention that was rightly criticised by a cross-party parliamentary inquiry this year”.
In a statement to the House of Commons, Immigration minister James Brokenshire reluctantly admitted that the system had “come under significant legal challenge” and he decided to temporarily suspend the operation of the detained fast-track policy hoping to resume operation of it when “the right structures are in place to minimise any risk of unfairness”.
However, from its early days the DFT system was branded as controversial and attracted a lot of criticism. It was introduced in 2000 by the Home Office and has rapidly expanded in recent years, reporting a 99% rejection rate on first hearing. The system aimed to fast-track the removal of asylum seekers with “very weak or spurious claims” which the Home Office believed could be decided within weeks, by accelerating legal hearings and appeals while keeping the individual seeking asylum in detention. Asylum applications submitted by individuals from certain listed countries (including over 20 countries such as Ghana, Nigeria, Liberia and Sierra Leone) were automatically processed through the DFT, unless they could demonstrate (on arrival) that their claim was not clearly unfounded.
Various campaign groups, charities and organizations involved in assisting asylum seekers also argued that the DFT system was abusing the rights of vulnerable people, such as victims of torture and trafficking, by detaining them unfairly and allowing extremely short preparation time (7 working days) for their lawyers to defend their case; a task that includes taking instructions, preparing statements, translating documents, making bail applications, obtaining medical reports and arranging expert witnesses. One asylum seeker whose asylum claim was initially dealt by the DFT system and rejected, claimed that: “The detained fast-track is nothing short of a kangaroo court. I received no fair trial, the result was fixed from the moment I walked in the room.”
She appealed and after a few years was granted leave to remain.
It is expected that over 800 asylum seekers’ applications who are currently in the DFT system, will be reviewed, allowing applicants to seek bail and “if detention can no longer be justified” more than 100 asylum seekers may have to be released from detention centres including Yarl’s Wood, Harmondsworth and Colnbrook with immediate effect to continue their asylum applications in the normal way. It has already been reported by the media that “more than 25 women were being released from the Bedfordshire detention centre, at least 10 of whom were thought to be going free because of the suspension, which created a queue inside the centre as officials had to process paperwork quickly”.
However, it is important to note that the DFT suspension effects considerably small number of detained asylum seekers. As advised by Mr Brokenshire, detainees who are facing imminent removal to their home countries or deportation to a safe third country, are at risk of absconding, pose a risk to the public or were foreign offenders will remain detained.
The suspension of the DFT is one of the most significant legal events in immigration law in recent years. It made an effective stir in the current Immigration policies forcing the Government to review the system and reconsider its procedural rules. However, as Sile Reynolds, of the charity Freedom From Torture, said: “The immigration minister has now committed to review the system but we question whether a review can tackle fundamental flaws which are in the very nature of the system.” According to Immigration minister James Brokenshire, the Government aims for the DFT suspension to be a temporary one, “perhaps only a matter of weeks”. Therefore we should soon expect to hear the outcome of the system’s review and anticipate that the changes adopted would not provoke imminent legal challenges.