The lord chancellor today lost his appeal against a High Court ruling that the detained fast-track appeals process is unfair to asylum seekers.
The detained fast-track system (DFT) is designed to process asylum claims quickly. Individuals are kept in detention pending the determination by the secretary of state for the home department of their claims and the determination by the First-Tier Tribunal (FTT) or the Upper Tribunal of appeals.
But the Court of Appeal, in The Lord Chancellor v Detention Action, dismissed the lord chancellor’s challenge, branding the fast-track rules ‘systemically unfair and unjust’. The government confirmed to the Gazette it will seek to appeal the Court of Appeal’s decision in the Supreme Court.
The lord chancellor and the home secretary, who was an interested party in the case, argued five safeguards were sufficient to overcome any systemic unfairness that would otherwise result from tight time limits.
These were: the appeals process was administered by independent and impartial judges; the judges were experts familiar with the factual, evidential, legal and procedural issues that can arise in immigration and asylum appeals; the judges have the tools necessary to enable them to ensure appeals are conducted fairly; appellants are for the most part represented by lawyers; and an appeal to the FTT and beyond occurs after appellants have undergone a fast-track decision-making process which has been held to be lawful.
However, Lord Dyson (pictured), handing down the Court of Appeal’s judgment, was ‘unpersuaded that the safeguards are sufficient to overcome the unfairness inherent in a system which requires asylum seekers to prepare and present their appeals within seven days of the decisions which they seek to challenge’.
He said the timetable for the conduct of appeals was so tight ‘it is inevitable that a significant number of appellants will be denied a fair opportunity to present their cases under the FTR regime’.
He added that the consequences for an asylum seeker of mistakes in the process were ‘potentially disastrous’.
Dyson said the system was weighted too heavily in favour of speed and efficiency and said it ‘needs to be adjusted’ in favour of fairness and justice.
Detention Action director Jerome Phelps said asylum seekers and the government had a ‘common interest’ in a system ‘that is both fast and fair. We hope that the government will work with civil society to find a different approach that does not sacrifice fairness on the altar of speed’.
A government spokesperson said it was ‘disappointed’ with the appeal outcome.
He added: ‘We regard “fast track” as an important part of our immigration system and the courts do not oppose this in principle. We are seeking further permission to appeal.’