By Jennifer Blair
Mr Justice Ouseley gives judgment on the lawfulness of the Detained Fast Track for asylum cases
Previous case law (R (Saadi) v SSHD  UKHL 41 and Saadi v UK (2008) 47 EHRR 17) found that the Detained Fast Track was lawful, but Detention Action argued that the number and type of cases now being placed on the Detained Fast Track (‘DFT’) has gone far beyond what was initially envisaged. The DFT is designed for cases where a ‘quick decision’ can be made on a straightforward case. The decision to place someone on the DFT is based on an initial screening questionnaire.
Home Office guidance suggests that the DFT will be suitable in cases where a quick decision can be made, including in cases where no document translations are needed, no further enquiries need to be made, the case is likely to be certified as clearly unfounded, the claim has been made to thwart immigration removal and/or it will be possible to fully consider an asylum claim in the DFT timescales. Home Office guidance also provides limited exceptions for cases unlikely to be suitable for the DFT – women 24 weeks pregnant, family or children’s cases, where mental health conditions make a person unsuitable for detention, where a person has a ‘reasonable grounds’ decision that they are a victim of trafficking or where there is independent evidence of torture.
Detention Action’s arguments were based on UK common public law grounds, they argued that:
- the DFT is no longer needed to address an overwhelming number of asylum cases – because the number of asylum seekers has dropped,
- it is now taking four times as long as initially envisaged to complete a case on the DFT, particularly since the DFT now includes an appeals process,
- the range of cases considered fit for inclusion is much wider – including FGM, trafficking, torture and rape cases,
- the screening questionnaire is inadequate for avoiding arbitrary decision-making,
- it is very difficult to get a case taken out of the DFT – even where the case appears to be wholly unsuitable,
- there is a huge delay between people being placed on the DFT and getting access to a lawyer,
- the appeal process has few safeguards if any, and
- the conditions DFT detainees are held in have deteriorated, becoming much more secure and prison-like than initially envisaged.
In addition the Equality and Human Rights Commission intervened and argued that the DFT discriminates against women, who are less likely to be able to disclose gender-based violence at a first meeting. The SSHD argued that there may be individual cases where the DFT has not operated lawfully, but overall the system is lawful.
Mr Justice Ouseley’s judgment breaks each argument down and takes each submission one step at a time. He makes various criticisms and ‘suggestions’ for improving the fairness of the DFT, but for most of his judgment he accepts the DFT system in principle and in practice. The Judgment is critical of the weakness of the Rule 34 and Rule 35 processes, which are designed (but commonly fail) to identify those with mental health problems/torture survivors who are unsuitable for detention. The Judge also accepted some of the concerns raised about detaining pregnant women who are less than 24 weeks pregnant and accepted that a genital exam of a survivor of FGM in detention could be equivalent to torture. However the sticking point for him is the late provision of legal advice – where lawyers are often only appointed the day before an asylum interview after a long period of inactivity in the person’s case, without any opportunity down the line to remedy initial unfairness. Mr Justice Ouseley stated that unless the problems with access to legal advice are remedied the DFT contains such a risk of a high degree of unfairness that it cannot be operated lawfully.
Interestingly, Mr Justice Ouseley examined the impact of the EU Charter of Fundamental Rights on this issue in detail and found that it had very little to add to the main ECHR arguments.
This judgment is being hailed as a victory, a declaration that the DFT is unlawful, but in fact it is questionable whether in practice it does much beyond suggest a few tweaks here and there that will allow the DFT to continue with business as usual.
It is particularly concerning that Mr Justice Ouseley’s judgment appears to explicitly entrench a culture of disbelief in the Home Office’s approach to asylum seekers. It was argued asylum seekers who raise torture or violence against women issues should not be placed on the DFT. Detailed evidence was put forward about the disproportionate affect of the DFT on women. Mr Justice Ouseley examined the evidence, but refused to accept that the DFT was discriminatory on the basis that this would presume that asylum seekers actually were victims of the persecution they claimed when in each case this had yet to be accepted. Despite having previously found the process unfair, he perhaps had in mind the 99% refusal statistic for the DFT (93% of which refusals are upheld on appeal).
He says at paragraph 213:
“I have considered groups of vulnerable applicants, some of which are exclusively women…I accept the difficulties which may inhibit making or presenting claims based on torture, trafficking, sexual violence and FGM, and the need for confidence, trust, and time for some claims to be advanced. But the predicate for the argument about entry into the DFT is that the claim has been made and is true. That predicate simply is not warranted. The making of a claim of that nature is admitted to be potentially difficult. The claim cannot be assumed to be true just because it is made. And such claims do not mean that the decision on international protection is itself necessarily complex.
 A policy that includes women applicants in the DFT is lawful.”
The CEDAW Committee has repeatedly emphasised, including in Optional Protocol Jurisprudence, that systems used for detaining women must be suitable to meet the anticipated specific needs of women detainees. Our ‘one size fits all’ approach to detention decisions continues to discriminate against women.
This judgment provides extremely valuable analysis for bail applications and future case law, but it is not a solution to the DFT in itself. Furthermore the analysis of gender discrimination appears to be plainly wrong – the apparent acceptance that it is sound in law for truthful applicants to be swept up and faced with unfairness, prejudice and serious harm because some people may be untruthful would never be contemplated for a moment in another area of law. Hopefully going forward specific cases can build on this judgment to tease out and focus in more detail on individual aspects of immigration detention and the DFT.
We would like to express our gratitude to Detention Action and the EHRC for all their hard work on this case – despite the reticence above, this case is a superb and brave feat and an outstanding resource for anyone making a bail application for a client on the DFT or a vulnerable client in immigration detention.
We hope this small step will be a catalyst for a giant leap forward in migrant’s rights.