This piece by Jerome Phelps first appeared in openDemocracy on 27 October 2014.  Jerome is the Director of Detention Action.

The UK Court of Appeal will hear an appeal this week over the lawfulness of automatically detaining asylum seekers while their appeals are heard. The era of expansion of this practice is already over and further change is likely. 

The Detained Fast Track, the system which incarcerates asylum seekers as a matter of routine as they await the result of their application for protection in the UK, has long been seen as implacable.

Primarily, it is implacable to the person who has just claimed asylum. Asylum seekers who arrive in the UK frequently find themselves locked up without warning, usually in Harmondsworth Immigration Removal Centre, where most of the wings are equivalent to a high security prison. They are told that they are not being held for removal, but for their asylum claim to be processed to accelerated timescales. As I have written previously on openDemocracy 50.50, everything from their provision to meals and healthcare to access to a lawyer is arranged by those who are directly or indirectly detaining them.

The Detained Fast Track is also implacable in its internal logic: once you are detained on the Detained Fast Track (DFT), there is often no way out. Individuals are refused asylum because they don’t have evidence and they don’t have time to get evidence because the Fast Track requires that applicants make their appeal within two days.

Finally, until recently, the DFT has appeared implacable in its expansion. It was introduced in 2000 to respond to unprecedented numbers of asylum claims. Although asylum claims have fallen dramatically since then, to just23,507 in 2013, the DFT system continues to grow. A higher proportion of asylum seekers are now detained, for longer periods, in worse conditions, with tighter timescales, than was ever initially intended.

Following a major expansion of bed-space, almost one in five asylum seekers are currently put through the DFT, amounting to 4,286 asylum-seekers in 2013.  Sharif, a survivor of torture from a North African country, was one of them.

“The stress was unbelievable,” he told me. “My blood pressure went extremely high. I had to have medicine for anxiety and depression. People told me ‘if you contact the Home Office, they try to send you back to your torturers.’ I wish I had listened to them. They were right.”

This implacability was interrupted on the 9th July 2014.  In a long-awaited ruling on a legal challenge brought by NGO Detention Action and represented by theMigrants’ Law Project, the High Court found that the DFT “as operated carries an unacceptably high risk of unfairness” to vulnerable or potentially vulnerable applicants. In the order of 25 July 2014, the High Court confirmed that the Fast Track “was to that extent being operated unlawfully.” Previous legal challenges to the DFT had failed to demonstrate unlawfulness, leaving the Home Office to believe that it could expand the scale and scope of the DFT as it chose. For now, at least, the development has been put on hold, yet a number of challenges remain.

Suitable for a quick decision?

The DFT is designed for asylum claims that are considered to be suitable for a quick decision.  However, the decision to detain and fast-track an asylum case is based on a screening interview, when very little is known about the person’s situation.  As a result, people with complex cases, including victims of torture, trafficking, gender-based violence and homophobic persecution, are regularly detained on the DFT.
Sharif’s screening interview lasted ten minutes. “The man asking me questions was racing through it. What is your nationality? Have you had your fingerprints taken? Where are your family? Nothing about my torture. Nothing about if I was fit for detention. Nothing about ‘Fast Track’.”

The High Court in Detention Action found “deficiencies” in the screening process and noted that “the process inherently cannot identify all the claims which are in fact unsuitable for detention or a quick decision”. Mr Justice Ouseley expressed “real unease about the cases which go through the DFT system when they should not have done so.”

Wrongly entering the DFT can have devastating effects on a vulnerable person’s chances of asylum. The Home Office refuses 99% of asylum claims which they have placed on the DFT.

If a person is wrongly put on the DFT, there are safeguards that should ensure that they are taken off. For example, Rule 35 of the Detention Centre Rules requires medical staff to report on any person for whom detention is harmful or who may have been a victim of torture. However, the High Court concluded that Rule 35 reports “are not the effective safeguard they are supposed to be” and do not work as intended to remove unsuitable cases from the DFT.

The threshold of unlawfulness

However, in the view of the High Court, it was the delayed and limited access to legal advice that tipped the operation of the DFT into unlawfulness. Asylum seekers were waiting an average of a week in Harmondsworth to be allocated a lawyer by the Home Office. This had the result that they often had only half an hour with their lawyer immediately before their second and substantive asylum interview, allowing very little time to build trust, explain their case and to receive advice.

For Shariff, it was just a matter of minutes. “Five minutes before the interview, they presented me with a solicitor. I sat with him and he asked me some basic questions. But every time we started to go into my case, the immigration officer would come in and say ‘Come on, no more time, let’s go, let’s go, let’s go.’ Everybody was in a rush.”

The High Court found that the “seemingly indefensible period of inactivity”, when the person was detained but could do nothing to work on their case, combined with the shortcomings elsewhere in the process, created an “unacceptably high risk of unfairness” in the process as a whole  The system, Mr Justice Ouseley concluded, “does not permit [the Home Office] to run it quickly only when it suits, and slowly when it does not.”

Change in sight?

It remains to be seen how the DFT will ultimately change as a result of this ruling. The Home Office immediately took steps to ensure that lawyers are allocated quickly and have at least four working days before the asylum interview. As a result, lawyers now have a small window to get people taken off the DFT and released. The High Court and the Court of Appeal refused to suspend the operation of the Fast Track to allow a more thorough review and more significant changes.

However, it may be that the DFT is still operating unlawfully, as the High Court was only prepared to say that the Home Office’s changes had the potential to make the process lawful. It is likely that there will be further legal challenges by individuals whose cases have been handled unfairly. The Court of Appeal will hear Detention Action’s appeal on 30 October 2014 over the lawfulness of automatically detaining asylum-seekers while their appeals are heard. Further change is likely – the era of implacable expansion is over.

Sharif was released from detention, and is now living in the community.

“At the time, I did not know that the thing ruining my life was called the ‘Fast Track’. I found out what it is the hard way. People go into it balanced and they leave broken. I know now how lucky I am to have survived it.

“Now the judges say the whole operation is wrong, but it continues. What justice is this? I am very pleased about the changes to the time people will have with solicitors. But it is not enough. No changes to the screening process? No changes to Rule 35? No changes to the appeal system? It does not surprise me that the Home Office have got away with it.”