UK: High Court finds appeals procedures on the ‘Detained Fast Track’ unlawful

Date: 
Friday, June 12, 2015

On 12 June 2015, the High Court ruled that  the UK’s procedural rules for appeals on the Detained Fast Track were ultra vires as they did not allow justice to be done.
 
The First-Tier Tribunal Procedural Rules provide for an accelerated appeals procedure for asylum seekers whose claims have been rejected by the Home Office, who are detained in designated centres throughout the consideration of their appeal. The current Rules came into force on 20 October 2014 following consultations by the Tribunal Procedure Committee which acknowledged concerns, endorsed by all of the consultees except the Home Office, that the Rules created injustice as appellants would not have a reasonable opportunity to prepare and present their appeals.

In the course of argument, lawyers for NGO Detention Action which brought the challenge, listed the tasks which a representative generally has to complete within the 7 working days between a refusal decision and the substantive appeal hearing [23], and gave examples of how this had unfairly affected applicants. Judge Nicol accepted that these difficulties were real, rather than just theoretical or illusory [59].

He found that the Rules incorporated ‘structural unfairness’ due to the ‘serious procedural disadvantage which comes from the abbreviated timetable and curtailed case management powers together with the imposition of this disadvantage on the appellant by the respondent to the appeal’[61].The disadvantage is heightened by the fact that the appellant will necessarily be detained.

There was no analogous situation in other litigation contexts where one party to an appeal was allowed to put the other at such disadvantage without sufficient judicial supervision [78-81]. The unfairness is not cured by the power of a judge to adjourn a case or take it out of the Fast Track due to the limitations on these powers, and the fact that the onus is on the appellant to demonstrate these matters within the same 7 working days as preparing for the substantive appeal [63].

In conclusion, the Court found that the Fast Track appeal Rules do not secure that justice is done or that the tribunal system is fair, and as such there was no legal authority to make them or allow them to continue. They did not meet the irreducible minimum of due process, bearing in mind the appropriate degree of fairness that asylum appeals require.

Despite this finding, Judge Nicol put a stay on his order quashing the Rules to allow the government to appeal against his judgment. Detention Action is appealing the order refusing the stay to prevent Fast Track appeals taking place under an unlawful procedure.  

Further analysis of the decision can be found on the Free Movement immigration law blogby UK barrister Colin Yeo. The judgment comes after other recent legal challenges to aspects of the Detained Fast Track system, reported on in the Weekly Legal Update here andhere



This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.

                                                     

 

Keywords: 
Detention
Effective access to procedures
Effective remedy (right to)
Procedural guarantees