In a judgment handed down this morning, the Court of Appeal has agreed with Nichol J’s earlier judgment in the High Court holding the Detained Fast Track appeal system to be inherently unfair. The new judgment is The Lord Chancellor v Detention Action  EWCA Civ 840. The Home Office were an interested party.
The reasoning of the Court of Appeal is very similar to that of Nichol J below. Essentially, the time scale of only 7 days to prepare and present a full appeal as well as all the other tasks that must be completed is held not to allow enough time. The fast track rules are declared to be “systemically unfair and unjust”. In giving the leading judgment the Master of the Rolls, Lord Dyson, states “that justice and fairness should not be sacrificed on the altar of speed and efficiency” and that the current rules do not strike the correct balance.
Some highlights to savour:
37. These asylum appeals are often factually complex and difficult. They sometimes raise difficult issues of law too. I am unpersuaded that the safeguards are sufficient to overcome the unfairness inherent in a system which requires asylum seekers to prepare and present their appeals within 7 days of the decisions which they seek to challenge.
38. I have no doubt whatsoever about the independence and impartiality of the tribunal judges who deal with the appeals. I accept that they are specialist judges who can usually be trusted to get the right answer on the basis of the material that is presented to them. I am also sure that they do their best to comply with the overriding objective of dealing with appeals justly. Nevertheless, in view of (i) the complex and difficult nature of the issues that are often raised; (ii) the problems faced by legal representatives of obtaining instructions from individuals who are in detention; and (iii) the considerable number of tasks that they have to perform (see para 20 above) the timetable for the conduct of these appeals is so tight that it is inevitable that a significant number of appellants will be denied a fair opportunity to present their cases under the FTR regime.
He goes on to consider the potential safeguards and finds them inadequate. Rule 14 on transferring cases out of the fast track is not sufficient because
- There isn’t even time to prepare an argument that the main case is unsuitable for the fast track, particularly given that the main case must be simultaneously prepared in case the rule 14 transfer out request is refused;
- In making out an argument that the main case cannot be adequately prepared, the appellant is placed in an invidious and unfair position because in order to explain why the time scales are unjust, the appellant has to identify all the evidential gaps in his case. But if the application to transfer is refused, the appellant will then have to persuade the judge that the appeal should be allowed notwithstanding these gaps;
- The rule is insufficiently flexible and there is too great a danger that judges applying the rule will consider the fast track timescale to be the default position otherwise the object of the rules would be defeated: “there will be a momentum in favour of proceeding with the hearing which it will be difficult for an appellant to stop”.
Lord Dyson concludes:
To summarise, in my view the time limits are so tight as to make it impossible for there to be a fair hearing of appeals in a significant number of cases. For the reasons that I have given, the safeguards on which the SSHD and the Lord Chancellor rely do not provide a sufficient answer. The system is therefore 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 Home Office is seeking permission to appeal, the Law Society Gazette reports.
I am currently dealing with an old asylum case that illustrates exactly the problems caused by the Detained Fast Track. An Afghan arrived in the UK in 2010 and claimed asylum on the basis of threats he had received while working at a US base. He was fast tracked. His claim was rejected on the basis that he was lying about his role: he was unable to obtain good proof in the short time available. He was lucky to be released and once he was released he was then able to contact his previous employers and get references and solid proof that he had been telling the truth. Five years later, he has belatedly been granted status by the Home Office but for some reason not yet recognised as a refugee, which we are challenging.
How many were not so lucky and were simply removed? The good news, though, is that 323 detainees have been removed from the Detained Fast Track since the first judgment was handed down in June.