After effects of the asylum process

The decision of Mr Justice Ouseley, a former president of the old Immigration Appeal Tribunal, in the recently decided case of R (TN & US) v Secretary of State [2017] EWHC 59 (Admin) is likely to have far-reaching implications for some of those that have been subject to the detained fast-track system for the processing of certain asylum claims.

The fast-track system provided for the determination of asylum claims and any appeal against a negative decision by the Home Office (the vast majority of claims were refused) under a hugely accelerated procedure with the applicant remaining in detention throughout, with little realistic prospect of obtaining bail while going through the system.

Detractors said that it provided inadequate time for applicants to receive advice, marshal evidence, and properly present their cases. The Home Office countered that quick decisions benefited all involved and this was in the public interest. The system has therefore been controversial from its inception and there have been various rounds of litigation seeking to challenge the lawfulness of the procedure that underpins it.

Crucial failing

The first challenge was the case of R (Refugee Legal Centre) v Secretary of State [2004] EWCA Civ 1481, brought by a reputable but now defunct organisation that provided advice and assistance to those subject to the fast-track procedure. The Court of Appeal found the operation of the pre-appeal decision-making system to be lawful and not inherently unfair as there were procedural safeguards in place to counter any potential for unfairness – namely ‘flexibility’ in its operation and access to the independent appeal tribunal to put right any unjust decisions made by the Home Office.

Likewise, Detention Action v Secretary of State [2014] EWHC 2245, another decision by Ouseley J, was a challenge to the lawfulness of the pre-appeal decision-making process on the part of the Home Office. It was found that the fast-track procedure was not unlawful in its terms but a ‘crucial failing’ in the system was that it did not provide for the early instruction of lawyers to provide advice, prepare the claim, and seek any necessary further evidence; this meant that the system ‘as operated carries with it too high a risk of unfair determinations for those who may be vulnerable applicants’.

Some changes were introduced by the Home Office but that did not dispel the concerns of those seeking to challenge the system. There was an onward appeal ([2014] EWCA Civ 1634) on a point not taken at first instance. The Court of Appeal ruled that the detention of those seeking asylum purely on the basis that their claims could be resolved quickly was unlawful. Again, this did not result in any real change in the operation of the system; although some detainees were released, the Home Office was able to maintain detention of many for other reasons, most notably risk of absconding.

Procedure rules

In Lord Chancellor v Detention Action [2015] EWCA Civ 840, the Court of Appeal, upholding the decision of the Administrative Court before it, found that the 2014 fast-track procedure rules were ultra vires and fell to be quashed. Shortly afterwards, the Home Office ‘suspended’ operation of the fast-track procedure – a position that remains the case today.

This decision prompted the TN & US challenge. The claimants argued that it followed from the second Detention Action case that the earlier 2005 procedure rules in operation up until 2014 must also be ultra vires. Ouseley J concluded that they were and issued a declaration to that effect. He did not go as far as to accept that all decisions made under the rules, now found to be a nullity, fell to be quashed, or that those decisions could be regarded, without more, as having been unfairly made.

However, it was accepted that it would be open to an appellant aggrieved with a decision taken under the rules to make an application to the First-tier Tribunal to have that decision set aside. The decision provides a potential, albeit belated, remedy to appellants, some of whom will still be in the UK, who have been through the system and lost. Given the difficulty in successfully making a ‘fresh claim’ for asylum following the refusal of an initial claim, the possibility of having a final determination of such a claim set aside in this way is significant.

Richard Young is a consultant at Sentinel Solicitors

www.sentinelsolicitors.co.uk