One overlooked solution to the one way asylum fast track to refusal and removal is to seek an injunction preventing consideration under the fast track process. This option should be seriously considered where the client has good grounds for asserting that a premature refusal decision by the Home Office will be an unfair one.
There are many, many problems with the asylum fast track process. The pinnacle at the top of the pyramid of these problems is the 99% refusal rate. The Home Office consider this proof that their selection of cases for fast track is impeccable. Others observe that it is merely an ontological proof; once a case is selected for fast track, refusal becomes a self fulfilling prophecy. A detained person with no opportunity to gather critical evidence, limited access to a lawyer and even then a lawyer with no time properly to prepare or think about the case is very likely to lose their case. Interestingly, permission for a judicial review of the detained fast track was recently granted [ILPA members only], which could prove interesting.
The appeal process offers some relief, although primarily only by removal from the fast track. If the appeal remains within the process then it too is overwhelmingly likely to be dismissed. The object of any serious lawyer is therefore to get the client out of the process so that everyone can think about the case properly and to avoid the taint of association with the fast track.
However, that is not a real solution. The client has already been refused asylum by the Home Office and thereby denied his or her first procedural opportunity for asylum. Irreparable damage has already been done to the client’s case. Further, once a case is ensconced in the fast track ‘juggernaut of speed’* it is assumed that the case is suitable unless it meets the Home Office’s exclusion criteria. The inclusion criteria are overlooked by this stage as that decision is already a fait accompli.
This issue was canvassed in the partially successful challenge to the fast track process in R (on the application of The Refugee Legal Centre) v Secretary of State for the Home Department  EWCA Civ 1481, in which Sedley LJ made the following remarks:
It was urged on us by Mr Tam [for the Secretary of State] that, while one could never guarantee against error in the initial decision-making process, the built-in access to the Immigration Appellate Authority was there to cure any such error. While this will no doubt afford sufficient redress in many individual cases – and so tends to reduce the risk of unfairness in the system, viewed as a whole – we do not consider that it is a sufficient answer to the issue raised by the RLC. First of all, an applicant is entitled not only to a fair appeal but to a fair initial hearing and a fair-minded decision. Secondly, and perhaps more important, the consequences of the risk which most concerns the RLC may very well not be susceptible of appeal. If the record of interview which goes before the adjudicator has been obtained in unacceptably stressful or distressing circumstances, so that it contains omissions and inconsistencies when compared with what the applicant later tells the adjudicator, the damage may not be curable.
A High Court injunction preventing consideration under the fast track process will avoid that initial knee jerk refusal and prevents the potentially irreparable damage done by an over hasty interview conducted with a stressed and traumatised client with view to refusal before evidence can be gathered.
I was briefed by Ashley Jane-Fleming of Bindmans in a case of this nature a few months ago and we secured the injunction before a refusal had been issued (as it undoubtedly would have been) essentially on the basis that there was a lot of evidence we would be able to obtain if permitted and the case was simply too complex for the fast track. The injunction application was made as the client was in transit to Harmondsworth and was granted, leading to the client’s quick release from the process and from detention.
I’ve been meaning to write this up for the blog for ages but have been nervous that I was pointing out the obvious. I’ve asked around, though, and it doesn’t sound like others are pursuing this course of action, so I hope it is worth sharing.
(c) Vicky Guedalla c.2002 at the Refugee Legal Group before it ascended to The Cloud.