Government prioritises 'speed before justice' with new asylum appeals plan
Rushing appeals risks unlawful removals, argues Law Society's vice president
A new fast track system to speed up immigration and asylum appeals for foreign nationals in detention risks undermining justice and fairness, the Law Society has said, urging the Tribunal Procedure Committee to reject plans put forward by government ministers.
The proposals would mean the time between an initial decision and the conclusion of an appeal to the First-tier Tribunal would be capped at between 25 and 28 working days. If accepted, the new rules could speed up about 2,000 cases every year and save the taxpayer an estimated £2.7m per annum, according to the Ministry of Justice.
'It is vital that foreign nationals who have no right to remain in the country should be removed as quickly as possible,' said justice secretary Liz Truss. 'We must ensure that foreign criminals and failed asylum seekers are not exploiting the justice system by attempting to stay in the UK after their claims have been rejected. Our proposals are also better for detainees as it will see their detention time cut.'
The plans would replace the old detained fast track appeals system of 12 days which was ruled ultra vires in 2015 by the Court of Appeal in Lord Chancellor v Detention Action  EWCA Civ 40. The government said its proposals have taken the court's judgment into account, however, by adding safeguards, including a case management stage for each detained appellant and new powers for judges to decide whether cases should be expedited.
Nevertheless, the Law Society has argued that the new scheme imposes a severely restricted timetable for the determination of often complex appeals. The society's vice president, Joe Egan, said that rushing detained asylum and immigration appeals would risk unjust decisions and unlawful removals.
'In an area of law where the stakes for appellants are so high, we must maintain an impeccable standard of fairness,' he said. 'There must be effective judicial oversight of asylum and immigration appeals. Quicker, fairer hearings can be achieved under the existing rules with a better resourced appeal system.'
Home Office data has revealed that 42 per cent of the 14,620 asylum and immigration appeals were successful between October and December 2016. Chancery Lane said these figures underline the importance of an accessible and fair appeals system.
'It is for the courts to decide the merits of each case,' Egan said. 'An administrative decision by the executive to fast track an appeal would pre-empt the outcome, remove vital judicial oversight, disenfranchise the appellant, and inevitably prejudice the case.'
The Law Society has also contended that as appellants would be detained during the new time limit, they would have limited access to a solicitor, further undermining the ability to assert their rights. Furthermore, says the society, the government proposals do not adequately show how vulnerable people will be protected or screened out of the fast track scheme.
Egan added: 'There is a real risk that speed would prejudice the integrity of the appeal process for people who are often extremely vulnerable and anxious, who may have suffered a terrifying ordeal.'
John van der Luit-Drummond is deputy editor of Solicitors Journal