The High Court declared today that putting four vulnerable detainees through a fast-track asylum process was unfair. Yesterday, Immigration Minister James Brokenshire made a statement to Parliament announcing the suspension of the detained fast track (DFT) system. That Ministerial Statement was made in response to these test cases brought by Garden Court Chambers.
Each of the four claimants is a victim of torture whose claim could not be fairly and quickly determined in an accelerated process. In each case, a medical practitioner in the detention centre expressed concerns that he or she may be a victim of torture. Although the Home Office’s policy is not to detain and subject victims of torture to a fast-track process, each of these claimants was nevertheless put through that system now accepted by the Immigration Minister to be unfair.
In an order approved by the High Court this morning, the Home Office now accepts it was wrong and unfair to put these claimants through the fast-track process.
These claimants are part of a wider litigation involving a total of 27 claimants who all brought claims in the High Court to challenge the Secretary of State’s decision to subject them to an unfair fast-track process for determining their asylum claims. The outcome approved by the High Court this morning will also benefit the remaining 23 claimants.
The stark individual facts of the 27 victims of torture, who were subject to detention in an unfair and unlawful process, finally led to the Immigration Minister’s announcement in Parliament of the suspension of the detained fast track.
The outcome is likely to also affect a wider group of detainees who were processed in the detained fast track since July 2014. According to published Home Office figures, 4286 people were processed in the DFT in 2013. The 2014 figures have yet to be published and are due to be published in August 2015.
Stephanie Harrison QC of Garden Court Chambers who led the litigation on behalf of the 27 individuals said:
“From its inception, the Detained Fast Track system has been subject to controversy and concern because it sanctioned detention of asylum seekers for nothing more than administrative convenience. The courts have consistently found the fast track system to lack sufficient safeguards to prevent vulnerable groups being caught up in the system such as children and victims of torture and trafficking. In 2014, the High Court ruled the fast track system was still continuing to operate unfairly in respect of the same vulnerable groups. It is a very significant development that the Home Secretary and her department have now recognized that it is openly unfair and must be suspended for a comprehensive review to take place”.
A 20-week study done by the Helen Bamber Foundation from 5 January 2015 to 31 May 2015 found that of the 304 referrals they received from individuals in the DFT, 200 individuals showed indicators of torture, ill-treatment or other indicators of vulnerabilities which meant they should not be put through the detained fast-track. Yet each of them were so processed. Of the 200 individuals, 69 had a rule 35 medical report in which a medical practitioner also confirmed they may be victims of torture but were not released. Yet each of those remained in the DFT notwithstanding their vulnerabilities.
Garden Court Chambers barristers were instructed by Toufique Hossain of Duncan Lewis Solicitors who represented the 27 claimants. Stephanie Harrison QC led Shu Shin Luh, Raza Halim and Leonie Hirst of Garden Court Chambers' Immigration and Public Law Teams. Stephen Knafler QC and Anthony Vaughan acted for the intervener, Immigration Law Practitioners' Association (ILPA).
A transcript of the judgment prepared by Shu Shin Luh of Garden Court can be found here: R (JM and ors) v Secretary of State for the Home Department
Notes to Editors
The Detained Fast-Track has been the subject of significant litigation over the past two years. The High Court judgment in July 2014 resulted in lawyers being given more time (four days) to prepare their clients’ individual claims. What this litigation showed is that the Home Office’s remedy of more time for lawyers did not resolve the array of deficiencies identified by the High Court last year. Two weeks ago, another High Court judge declared that the appeal processes in the fast-track were unfair and unlawful and the Court of Appeal last week overturned a stay of the implementation of that judgment. Throughout that process, the Home Office defended the system vigorously.
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