High Court rules asylum detention programme is unlawful

The high court has ruled the government's fast-track detention programme for asylum seekers to be unlawful, after it severely criticised people's access to justice when they arrive in the UK seeking help.

While Mr Justice Ouseley did not find the programme to be inherently illegal, he ruled that its current operation "carries an unacceptably high risk of unfairness" because of the extremely limited time asylum seekers are given with legal representatives.

The judgement follows years of warnings from asylum support groups that people who are put on the fast-track system are detained for weeks before being given access to a lawyer.

Typically, legal representation shows up on the day asylum seekers must give evidence to Home Office officials, denying them the opportunity to put together a robust case.

The limited availability of lawyers for people who are often suffering from trauma and cannot speak English mean the odds are stacked against them. Just one per cent of the people put on the fast-track system are accepted.

"This is good news for people in detention facing return to torture, but it is also good news for British justice," Jerome Phelps, director of Detention Action, which brought the legal action, said.

"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.  The government failed to heed those concerns necessitating legal action by a small charity."

The judge raised concerns about several areas of the system – most dauntingly that it was failing to live up to its obligation to make sure torture victims, trafficked people and those with mental health problems were not included.

The Home Office has insisted for years that there were stringent controls to make sure they were not included in the fast-track detention system, but Mr Justice Ouseley warned that the safeguards were not satisfactory.

He criticised the system to make sure victims of torture and sexual violence were not sent to detention centres and said not enough was being done to see if asylum seekers had been trafficked.

He attacked failures in the process for identifying trafficked women and said time was needed for representatives to build up trust with asylum seekers in order to establish their circumstances – something which is in short supply in fast-track cases.

He also found the current questioning policy was not designed to elicit the relevant information and failed to contain questions which might elicit "trafficking indicators" – signs that the person was being used.

The ruling also criticised deficiencies in the mental health provisions and said officials should consider how those with mental health or learning difficulties might be unable to make a claim under such severe time constraints.

But the main focus of the judge's ruling concerned the limited availability of legal representation and it was this which was behind the judgement.

He found that while the system had other deficiencies, it was the absence of legal advice which meant these other elements combined to make operation of the system unlawful.

"The conscientious lawyer does not have time to do properly what may need doing," he said.

"As I have gone through the various stages of the detention fast-track process, I have commented on what appear to me to be remediable deficiencies which together fall short of showing that the detention is unlawful or that the process contains so high a risk of an unfair decision that it is inherently unlawful.

"At each stage, however, it has been the prospective use of lawyers, independent, giving advice, taking instructions having obtained the client's confidence, which has seemed to me to be the crucial safeguard, the crucial ingredient for a fair hearing, whilst maintaining the speed of the process, but which can protect against failings elsewhere, and avoid an unacceptably high risk of an unfair process."

The decision was celebrated by campaigners, although many were angry the judge did not go so far as to brand the system inherently unfair.

Refugee Council chief executive Maurice Wren said: "Today's judgment is extremely significant. However, it fails to acknowledge the reality that the detained fast track system is fundamentally unjust and can never achieve fairness.

"The whole purpose of the detained fast track is to condemn innocent people to a Kafkaesque procedure, solely on the say-so of Home Office officials, because it’s politically and administratively convenient to do so.

"Locking up asylum seekers who’ve committed no crime and subjecting them to a profoundly and wilfully unjust decision-making process is both shameful and demeaning."