The inherent unfairness in the fast track asylum appeals
The object of the SS HD in placing asylum appeals in the fast track is an entirely laudable one of dealing with them quickly. This is not because she considers that they are all hopeless cases. Far from it. Although many of the appeals are dismissed, many succeed. They are placed in the fast track so that they can be handled quickly and efficiently. But the consequences for an asylum seeker of mistakes in the process are potentially disastrous. That is why section 22(4) of the tribunal’s, Courts and enforcement Act 2007 recognises that justice and fairness should not be sacrificed on the altar of speed and efficiency. As I have explained, the fast track rules do not strike the correct balance between (i) speed and efficiency and(ii) fairness and justice. It is too heavily weighted in favour of the former and needs to be adjusted. Precisely how that is done is a matter for the TPC and Parliament
Before the hearing in the Court of Appeal, Mr Justice Nicole had held that the fast track rules were ultra-virus section 22 of the tribunal’s, Courts and Enforcement Act 2007 and he made an order quashing them. In particular he found that the appellate stage of the system introduced by the fast track rules was structurally unfair and put appellants seeking to challenge asylum decisions of the SSHD at serious procedural disadvantage. The Lord Chancellor was named as a defendant in the court below because he approved the fast track rules as the enabling legislation requires, namely section 22 of the 2007 Act.
Some of those affected may have been tortured or even killed after being forcibly returned to conflict zones.
The judgement related to asylum seekers in immigration detention from 2005 to the end of 2014. Some considered by the Home Office to have particularly weak cases were placed in detained fast track, meaning they had just seven days to prepare appeals after their initial asylum claim had been refused. Others had a much longer time to gather evidence for appeals, get expert report and obtain legal representation.
The ruling meant that asylum seekers could ask for the previous refusals to be set aside and Lodge fresh appeals. In the judgement at first instance which focused on two cases, Mr Justice Nicole had said, inter-alia, I am clear that the 2005 fast track rules in the context in which they operated in this case meant the appeal was dealt with too fast to be fair. Once notice of appeal had been given, the appeal was heard within 12 working days. This posed near impossible situation of having to prepare complex appeals in such a short space of time and to deliver appropriate bundles to the appropriate tribunal and to the presenting officers unit. Insofar as decisions were concerned they had to be prepared and promulgated almost immediately after the hearing. This produced numerous complications particularly if the legal aid certificate was required to represent the appellant which in itself took time to obtain.
New proposals to reinstate fast track appeals and the risk of unfairness
The new proposals merely extend the fast track ruled unlawful from notice of appeal to hearing, from 12 to 25-28 days which would still imposes an unreasonable restrictive schedule for the determination of complex appeals. Under the new bail provisions, the SS HD must initiate the bail process if a detainee is to be held in detention for more than 28 days. If a hearing is to take place within 28 days of the filing of notice of appeal, the SSHD’s view is that there is a reasonable chance that there would not be granted before the hearing of an imminent appeal.
There is therefore a real risk as there was under the previous fast track system, that unjust decisions could be made leading to people being removed from the United Kingdom unlawfully. Asylum and immigration claims are usually complex in nature and involve the gathering of substantial evidence, preparation witness statements, medical and other psychological and psychiatric evidence, instructing appropriate counsel, obtaining public funding where that is required, and it seems to me that a case cannot be properly prepared within such a short space of time.
Insofar as appeals from persons not detained, currently are concerned, there is a huge discrepancy between the notice of appeal and the date of the hearing; they now average nearly one year, about 50 weeks therefore from notice of appeal to hearing. Of course, I can understand the government’s concern that the longer the appeal process drags on, the better for the prospective appellants, as they can use the delay to their advantage in establishing rights to family life in the UK. There are also so many reasons for adjournment applications in the interim before the full hearing takes place which may mean, that an appeal will not be heard for something in the region of 1.5 years from the date that notice was given.
I do therefore think that the Home Office proposals to curtail the timeline for appeals by people held in immigration detention centres could lead to injustices. Those detained for a variety of reasons; it could be because the SSHD has intention to deport them as foreign criminals, or because they are over stayers, or because they are here legally ab initio. Whilst I understand that by fast tracking appeals from those in detention this could speed up cases every year and save the taxpayer £2.7 million as a Home Office suggests, and I do not dispute those figures, such speeding up of the process and saving of tax however, surely cannot be made in a way that prejudices the appeal right of the detained individuals.
Furthermore, in preparing the appeal, detained individual will need time to consult appropriate solicitors in order to gather all the evidence per the instructions of their lawyers. Speeding up the appeal process when there are so many unreliable initial decisions by the SSHD risks riding roughshod over people’s rights. An example is the Windrush crisis which shows how devastating an incorrect Home Office decision can be.
Many claims diverted to the fast track process would be on human rights grounds, and the Home Office figures show that 56% of appeals on these grounds and succeed. Is it fair to risk such success and the proper presentation of appeals by speeding up the process to an extent that it makes it hugely difficult to gather all the required evidence before the appeal is heard? Furthermore, about 41% of appeals based on asylum are upheld from refusal decisions by the Home Office.
Quicker and fairer hearings can be achieved under the present rules by the investment of more resources into the administration of the Home Office and tribunal system to enable decisions to be made quicker by Home Office caseworkers, and appeals against refusals to come on for hearing earlier than at present. Discussions between Home Office officials and various human rights and immigration pressure groups, such as the Immigration Law Practitioners Association (ILPA) as to what would be a fair and reasonable time frame from notice of appeal to hearing, would be a better way of bringing about reform in this area. Most of the immigration tribunal hearing centres run full courts throughout the week, and there are many cases in backlog awaiting to be heard. Therefore, funds invested to revise the system would be well spent. The solution is not fast tracking the appeal process in a way that gives little time for preparation.
In conclusion, decisions in a fast track appeals have also the tenancy of containing errors of law, because of the speed in which they are prepared, almost immediately after the hearing, for promulgation. Far from achieving their objective of speeding up the system, such errors of law will inevitably mean that the ultimate decision on the appellant’s stay or removal from the UK will be delayed far beyond what was originally envisaged when the case was fast tracked. The government should rethink about reintroducing a fast track system in favour of investing in the appellant process from decision to hearing to enable the system to run more effectively and efficiently in interest of justice.
by Dr Bernard Andonian
Dr Andonian is a guest contributor at Legafit.com. DR Andonian has been a practicing lawyer for over 30 years and also sits as a Judge of the First-tier Tribunal (IAC). He has been at the forefront of legal developments both as a practicing lawyer and a s a Judge, and has demonstrated his unique skills, through his writing, in untangling complex legal phenomenons and distilling them down to basic concepts that can be understood by everyone.