The government's proposed fast-track appeals timetable for immigration and asylum detainees is not enough time for solicitors to do everything necessary to effectively represent their clients, the Law Society has warned.
The government says specific rules in relation to appellants' detention are needed to guarantee a maximum timeframe for determining appeals. It says the appropriate timeframe to determine an appeal in the immigration and asylum chamber, from the time the appeal is lodged to the time it is determined by the tribunal, should be 25 working days. If the Tribunal Procedure Committee, which makes rules governing the first-tier and upper tribunals, thinks 25 working days is too short, the timescale should still not exceed 28 days.
Responding to the committee's consultation on the rules, Chancery Lane rejects from the outset the suggestion that fairness and access to justice can be achieved in 25 or 28 days. The Society says it is unaware of any research or evidence that supports the view that the proposed timescale gives appellants sufficient time to properly prepare cases.
Government statistics show that 56% of appeals on human rights grounds succeed. Four in 10 deportation appeals are successful, as are 66% of deprivation of citizenship appeals, and 41% of asylum/protection/revocation of protection appeals.
Society president Christina Blacklaws says accelerating the appeals process given there have been many unreliable initial decisions by the Home Office 'risks riding roughshod over people's rights'.
To prepare an appeal, the Society says legal representatives must obtain legal aid, instruct experts, have adequate time to take instructions from detainees, prepare statements and pursue adequate disclosure from the Home Office.
The legal aid position is 'precarious', with many cases likely to be partly or wholly out of scope because the limited exceptions, such as those that exist for trafficking and domestic violence victims do not apply. Current times for determining applications for exceptional case funding are lengthy, so many appellants may be unrepresented or solicitors may not be able to prepare parts of their appeal properly due to lack of funding. In a review carried out by the Society last month of cases held by a detention advice contract provider, exceptional funding applications - 'clearly marked as urgent' - took between four weeks and four months to decide.
Highlighting challenges around accessing or communicating with clients in detention centres, the Society says visiting times can be restrictive, taking a client statement can take days, and solicitors are not always informed when clients are transferred to other centres.
Blacklaws says the Windrush crisis has highlighted the devastating impact of Home Office decisions: 'When the stakes for appellants are so high, the UK must maintain the highest standard of fairness and make every effort to ensure just decisions. There must be effective judicial oversight of aylum and immigration appeals. Quicker, fairer hearings can be achieved under the existing rules with a better resourced judiciary and court system.'