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22 January 2015

Unfair and unlawful: Courts deliver judgements on the Detained Fast Track Procedure

6 mins

This article looks at the Detained Fast Track (DFT) Procedure and tracks the series of blows delivered to the Government’s scheme in the last 6 months, through cases brought by the campaign and support group Detention Action, most recently heard in the Court of Appeal in December 2014.

The effect of the judgement will reduce the length of time asylum seekers can be detained and should make the system fairer.  However, questions remain as to whether it will address the shockingly high refusal rates for those on DFT: currently 99% of asylum applications are refused*.

*compared to 72% for non-DFT cases.

What is DFT?

Prior to the Detention Action judgements, DFT involved detaining asylum seekers when they claim asylum and then processing their applications and appeals whilst in detention.  99% of applicants would be refused, often due to a lack of evidence, yet be unable to obtain any further evidence due their appeal being only two days after refusal. Unsuccessful appellants were then sent straight back to their country of origin**.  

The Government’s penchant for the mass detention of people who claim asylum manifested itself in 2000. The original system applied only to men and was implemented at a time when the Government was handling up to 9,000 new claims a month.  A decision would be made within 7 days and detention took place in a low-security environment. Those refused could pursue an appeal outside of detention.

However, the system was extended to include women and the period of detention extended to cover the appeals process.  This resulted in the average period of detention increasing from 7 to 56 days.  Furthermore, conditions in the IRCs are now harsh and have been likened to those in high security prisons.

**Figures from a 2011 report show that 73% of DFT applicants were removed from the DFT to their country of origin.

Key features pre-judgements

Anyone claiming asylum is screened for consideration as to their ‘suitability’ for DFT, as part of a wider screening interview of the applicant’s circumstances.  The focus of the screening interview is on ‘method of entry’ to the UK with minimal information gathered regarding a persons reasons for claiming asylum.  This limited information is assessed against the UK Visa and Immigration’s (UKVI) Suitability Criteria policy.

The overriding suitability criterion is whether a case can be ‘decided quickly’.  However, what emerged from the Detention Action hearings is that in considering suitability for entry to the DFT, the Screening Officer will also refer to a secret Operational Considerations ‘list’, which provides information on the practical ‘returnability’ of certain nationals, on a ‘red’, ‘amber’, or ‘green’ basis.  This list is not publicly available.  In the first Detention Action case, Ousley J held this document to be ‘a thing’ that ‘helps in the application of policy’….but (definitely not) a ‘policy’. 

An applicant will atypically (at least prior to the recent judgements) spend two weeks in detention before anything happens.  Then from out of the blue and in earnest, the DFT timetable kicks in: the asylum seeker is told they have a hearing the following day; they see their legal rep on the morning of their asylum interview; a decision is made the following day, their appeal is heard two days later; etc, up until appeal rights are exhausted and administrative removal is effected.

A shocking 99% of all DFT asylum applicants are refused. In his 2011 report the Chief Inspector of the Home Office interviewed six DFT decision-makers and found that two of them had never granted asylum***.   This is a remarkable statistic given that 14 asylum applications are decided each day in DFT.

For the Secretary of State, however, this shows that the system is working: high refusal rates shows weaker claims are being effectively filtered onto DFT, hence the high refusal rates.  This rationale is at certainly odds with the Immigration team at Bindmans who have experienced people on DFT with strong asylum applications being inexplicably rejected.

***The other caseworkers interviewed had only made a single grant each so far that year.

The Detention Action case No. 1

In July 2014 Detention Action scored a partial victory.  Ousley J found the system to be deficient in a number of respects which, cumulatively, led to an unacceptably high risk of unfairness. Inadequate screening of people claiming asylum was leading to victims of torture, trafficking and rape being unlawfully detained. Ousley J saw the remedy for these deficiencies being the earlier instruction of lawyers, noting there is now ‘a premium for the fairness of the quick process on the availability of legal advice and representation early rather than late’ (para 196).

However, the Ousley J refused to rule on Detention Action’s argument that the DFT policy only applies to initial stage applications rather than appeals.

The Detention Action case No. 2

In December the Court of Appeal found the Secretary of State’s practice of detaining all asylum claimants with appeals pending to be unlawful.  The decision was reached on the basis that the guidance does not meet the required standards of clarity and transparency.  Beaton LJ also noted obiter that the policy of detention of persons, who poses no risk of absconding, cannot be justified.

On 23rd December 2014, the President of the Upper Tribunal of the Immigration and Asylum Chamber directed that all appeals within the DFT be suspended.

Where now?

The Detention Action cases have resulted in improved legal access for detainees and halted the blanket detention of those who appeal. This should result in large numbers being released.  Meanwhile, some of those claimants who have been refused and are appeal rights exhausted (but have not been removed) can potentially rely on the DFT’s pre-July 2014 unlawfulness to found a fresh claim. 

Early legal access could plausibly reduce the length of time victims of torture and other vulnerable groups are unlawfully detained, however, will it lead to any change in the absurdly high refusal rates?  Bindmans does not hold an ‘exclusive contract’ to do DFT work.  However, under Legal Aid rules we are able to represent clients for whom we have done a significant amount of work for, prior to them being detained.  Our experience has been that a strong and well prepared case can nonetheless be refused by a DFT caseworker. This suggests that early access to lawyers might not reduce the high refusal rates and that there is an inherent culture of disbelief amongst DFT caseworkers: a further reason why DFT as a system cannot be justified.

asylum and human rights, immigrati, asylum and human rights, immigra

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