Landmark case on “unlawful” asylum fast-track

A High Court judge has held that the detained fast track (DFT) for “straightforward” asylum cases is operating unlawfully.

In Detention Action v Secretary of State for the Home Office [2014] EWHC 2245 (Admin), Mr Justice Ouseley found that the lack of legal representation for detainees meant that the “the DFT as operated carries with it too high a risk of unfair determinations for those who may be vulnerable applicants”. 

However, he fell short of finding the DFT unlawful in principle, and set out steps that the Home Office could take to make the process lawful.

Cases assigned to the DFT are decided within a few days, sometimes within 24 hours, and usually without the detainee receiving legal advice or being given access to independent legal advice. 

Delivering judgment, Mr Ouseley endorsed the value of high quality early legal advice, stating: “It has been the prospective use of lawyers, independent, giving advice, taking instructions having gained the client’s confidence, which has seemed to me the crucial safeguard, the crucial ingredient for a fair hearing.”

Ouseley J found it “indefensible” that asylum-seekers are locked up for an average of a week before they can see a lawyer. He criticised the adequacy of screening of asylum-seekers’ suitability for the process, and found that failings at various stages meant that survivors of torture, victims of trafficking and other vulnerable people unsuitable for the DFT, were not being identified.

Sonal Ghelani, solicitor at the Migrants Law Project, who acted on behalf of Detention Action, says: “Serious concerns regarding the operation of this process have been expressed, over a number of years, by respected organisations such as Detention Action and the UN High Commissioner for Refugees (UNHCR).  

“The government failed to heed those concerns necessitating legal action by a small charity. The court has found that the DFT is an unlawful process. The government should now listen to what Detention Action, other charities, lawyers and UNHCR have been saying and consider carefully whether a process of determining claims for protection that involves the expense of detaining people who pose no risk to anyone is necessary.”