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Tribunal says no to return of fast track asylum appeals

Tribunal says no to return of fast track asylum appeals

Tribunal bosses have put their foot down on fast track asylum appeals, refusing the government’s push for an accelerated process for appellants in immigration detention. The Tribunal Procedure Committee said that it would not be re-introducing a system like the Detained Fast Track that the courts found to be unlawful back in 2015. It pointed out that any such system would need so many safeguards to maintain some semblance of due process that it wouldn’t speed things up anyway.

The committee’s decision, published yesterday, is a victory for the seven expert organisations that responded to its consultation. All had opposed the return of Detained Fast Track.

There had been some form of Detained Fast Track in place between 2000 and 2015. It took the form of adjustments to the tribunal’s normal rules of procedure when it came to asylum seekers in detention centres, applying much shorter appeal deadlines and limiting the tribunal’s powers to adjourn cases or pull them from the accelerated process.

But in 2015, the High Court deemed the system unlawful. Mr Justice Nicol concluded that the Fast Track Rules were “structurally unfair, because their abbreviated timetable and the restricted case management powers available to the judge created a serious procedural disadvantage”. The Court of Appeal upheld this judgment in Lord Chancellor v Detention Action [2015] EWCA Civ 840.

The government pushed for a replacement, arguing that asylum seekers in detention should have their appeals decided in 25 — or, failing that 28 — working days.

The Tribunal Procedure Committee, in a stalwart display of independence, refused. It said that “in order to ensure that such a system would deal with cases fairly, it would need to include rigorous procedural safeguards to ensure that unsuitable cases were not included within the fast track system”.

Those safeguards would need to include an “early oral case management hearing for all cases where an appellant was in immigration detention… to decide whether the appeal should be heard under the Principal Rules or any fast track rules”. Such hearings would, in turn:

absorb a substantial amount of judicial and administrative resource, which would then not be available to be used to resolve cases… The need for robust safeguards also means that specific rules would not lead to any greater certainty in relation to how long an appeal would take to conclude. An inevitable consequence of such safeguards would be that many cases would be dealt with outside the fast track timescales, since the purpose of such safeguards would be to identify unsuitable cases and ensure they were dealt with differently. Specific rules would therefore create no greater certainty than the existing Principal Rules.

The committee also pointed out that “cases are already being resolved quickly”. Appeals under the Home Office’s Detained Immigration Appeals scheme are currently taking an average of 11 weeks from receipt to a decision.

This figure is based on number-crunching that goes way behind the routinely published data, which show cases taking much longer than that. Readers interested in the stats can consult paragraphs 21-32 of the consultation response, but the upshot is that the committee didn’t think fast track rules, done lawfully, would make a difference. All in all, it concluded,

a set of specific rules would not lead to the results sought by the Government. If a set of rules were devised so as to operate fairly, they would not lead to the increased speed and certainty desired.

The organisations successfully lobbying against fast track rules were Liberty, Bail for Immigration Detainees, the Equality and Human Rights Commission, Medical Justice, Detention Action, the Law Society of England and Wales, and the United Nations High Commissioner for Refugees.

CJ McKinney

CJ is Free Movement's deputy editor. He's here to make sure that the website is on top of everything that happens in the world of immigration law, whether by writing articles, commissioning them out or considering submissions. When not writing about immigration law, CJ covers wider legal affairs at the website Legal Cheek and on Twitter: follow him @mckinneytweets.

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