As immigration detainees stage protests at Harmondsworth Immigration Removal Centre in protest at the detained fast track system, Nick Nason looks at how the process works and the problems for lawyers representing clients within it.
Not so fast track
The fast track is designed to dispose of straightforward claims quickly. For clients, it usually means they are detained at one of the centres orbiting London – Harmondsworth or Colnbrook for men, Yarlswood for female clients – and entered into a process which will see their claims decided, including any appeal against refusal, in a matter of weeks.
Legal aid is available to individuals in the detained fast track process from a handful of contracted law firms. My firm is not one of those firms. However, legal aid providers who have spent more than five hours working on a client’s case at the point they are detained and entered into the fast track are permitted to continue to act.
What happens where a client’s case is not suitable for the fast track? The guidance (available here and here) states that the overriding principle of the fast track is one of fairness. It suggests that detention should be used as a last resort, once all other options have been exhausted. The guidance also suggests that applicants who wish to provide corroborative evidence concerning their claim should be allowed to do so and that if this cannot be done from detention, or within the timeframes permitted, release from the fast track should be considered. Requests can be made to the Home Office team for Temporary Admission on this basis and can be made orally or in writing.
A recent case
A client of ours was recently detained. We were half way through preparing a detailed statement. The key issue in our client’s claim was his sexual orientation. We had a number of statements to be taken from previous partners and others who could support his case. We also had a significant amount of information to be sourced from the internet regarding activities on gay websites which would also be highly material to his claim and the key question – seldom accepted by the Home Office – of whether or not our client was gay.
Our client was detained on the weekend whilst reporting (Day 1). On Day 3 an application was sent to the fast track for his release providing reasons why his claim could not be reasonably determined without the evidence we were seeking to obtain. A response was provided late on Day 5, explaining that our client did not have to be on Temporary Admission (i.e. released) to arrange for a statement to be provided and he could provide his passwords and login details for the websites to third parties who would be able to obtain the materials from the internet.
It was stated in the same response that there was a risk that, despite our client proactively making a claim for asylum, and that he was later detained whilst reporting, he was a flight risk based on the relatively short period of time that he had overstayed his visa. We were informed over the phone that the Case Owner was the person who could make a decision as to whether a Temporary Admission request was reasonable, and he would be able to consider this only at interview.
Late on Day 5 we applied for emergency legal aid funding to challenge the refusal to release by way of Judicial Review and to seek an injunction preventing consideration of the case under the Detained Fast Track.
On Day 6 we were informed that our client’s main interview had been scheduled for the following week (Day 13). Without funding we were not in a position to challenge the decision at that stage. We therefore set about preparing the rest of our client’s application as best we could in the circumstances.
Our client had no choice but to provide login details of relevant websites, containing highly private and sensitive information to a third party who had to retrieve these materials for him. We assisted our client in completing his statement – so important in every asylum claim – which in the end ran to over 10,000 words under time pressure and within a detained environment.
Funding was granted on Day 11. As a result the earliest we could have issued our claim was first thing on Day 12 (the day before the interview, scheduled for Day 13).
We had worked hard – with our client’s friends and supporters – to get the claim in the best shape possible in the time available. We had roughly 60% of the evidence we would have liked to have collected (and would have done) if our client had not been detained.
Twist or stick?
We had a decision to make.
Did we issue proceedings in the upper tribunal the day before the interview, requesting a response from the court in less than a working day? Or did we persevere within the fast track, where we had presented a relatively strong claim, albeit with one hand tied behind our backs? See this post by Freemovement on seeking injunctive relief for clients in the fast track, although prior to important legal aid changes.
We did not need to issue proceedings for two reasons. Firstly, our grounds for doing so – that release should be effected to enable our client to provide information supportive of his claim – steadily weakened as the evidence came in whilst we waited for funding to be approved. Secondly, and bearing in mind the first reason, we would be asking the upper tribunal (once funding had been granted) for a remedy in less than a working day. It is unclear, especially considering recent judicial comment in the High Court concerning the use of the emergency procedures by lawyers, how amenable the upper tribunal would have been to grant us a remedy in such short order and in a non-removal case. See our recent post on so-called ‘Hamid Cases’ here.
A representative of this firm attended the interview with our client in detention on Day 13. We had managed to provide supportive evidence concerning out client’s case (including letters and outline statements from several individuals expressing a desire to provide more detailed evidence if given the opportunity) in addition to our client’s detailed witness statement. Despite confirming that this had been received the day before by the relevant fast track team, the interviewing officer had not read the statement or the supporting materials at the time of the interview. Indeed, he expressed surprise that a statement had been provided at all.
At the end of the interview we made a formal oral request for temporary admission (release), making reference to the relevant guidance. This was noted down in the interview record and we were informed that this would be dealt with the following day. Calls were made the following day but our client was not released and we received no response to our request for release. In our final call, on a Friday evening (Day 14), we were informed that the Case Owner had left for the day and that requests for release needed to be made in writing.
Upon referencing the guidance (which specifically allows for oral requests: ‘a written response [from the Home Office] will usually be appropriate for all written requests and detailed oral requests [for release]’) we were told that all requests must be made in writing. Our client remained in detention over the weekend.
On Day 17 we made a written request for temporary admission as well as further representations based on the interview record. Our client had submitted everything he could have from detention: any further evidence would have required his release (principally in the form of statements from individuals who he needed to talk to and/or track down). We received a formal response late on Day 17 responding to our written request for release, refusing Temporary Admission on much the same basis as before.
We had previously applied for bail as a long stop and this was listed for Day 18 at Hatton Cross, a tribunal centre near Heathrow. Upon review of the evidence – and significantly the number of witnesses who our client was proposing to call in the event of any appeal – the Immigration Judge found that this was not a case best suited to the fast track and granted bail (and release from the Fast Track process). Being granted bail from the fast track was apparently such a rarity that it took several hours for our client to be released.
This case raises several issues of concern.
The Fast Track
We were of the view from the outset that our client was not suitable for the fast track due to the nature of his case. It took an Immigration Judge (who, by his own admission, very rarely granted bail from the fast track) about 20 minutes to agree. To some extent we relied on the safeguards provided by the system – Temporary Admission, Tribunal bail – to provide a remedy. On reflection, this appears to be an approach increasingly fraught with risk.
This case exposes the chasm which exists between Home Office guidance and the reality on the ground: release should not be considered for the first time at interview; requests can be made orally; detention should only be used as a last resort in cases where there is a proven risk of absconding (not a mere possibility which conceivably exists in every single case where a detainee is released). The guidance should not be aspirational, reflecting a best-practice which is never practiced, otherwise it is no better than lip service, and is rendered meaningless.
Where the use of the Fast Track process has reportedly increased to such an extent in recent years, the need for the Secretary of State to adhere to the letter and spirit of her own guidance is acute.
As is clear from this case, the decimation of legal aid and the increasing difficulties in obtaining funding for judicial review (lawyers are now only paid after if they are granted permission to proceed in JR cases meaning a significant risk for any lawyers wishing to pursue applications) individuals are gradually losing the ability to challenge decisions made by the state. Not only have the legal aid rules been toughened up, but the costs for individuals with or without lawyers have spiralled to even lodge and then pursue an application.
The ramifications of other legal aid changes are also manifest in the present case. Prior to legal aid ‘reforms’ which abolished devolved powers (meaning that lawyers are now required to apply for legal aid funding in JR cases before they begin proceedings meaning a delay of at least a few days even in emergency applications) we would almost certainly have issued proceedings in this case on Day 5 following the initial refusal to release on Temporary Admission. As it was, funding was not approved until Day 11 (and this was an emergency application) and for the reasons given above meant that we could not ask a court to review the Home Office decision at an earlier stage.
There is much made in the media of lawyers in immigration cases abusing the court systems, in particular by use of judicial review (for example, here). This has been used as a basis by the Ministry of Justice to make it more difficult to access judicial review in the ways outlined above, by increasing fees for applications on the one hand; and by reducing the ease of access to funding on the other hand.
In addition, the High Court has also made several public warnings concerning the conduct of solicitors brining emergency applications for judicial review. Whether or not it was the intention of the High Court in the Hamid line of cases that, such are the potentially devastating consequences for a firm if they end up on the receiving end of one of these judgments, it certainly played a role in the decision not to issue proceedings.
Magna Carta and all that
The cost to the taxpayer of detaining one immigration detainee in one detention centre is reportedly £102 per night. The amount spent on detaining immigrants each year was said to be over £130 million per year at the end of 2012. What is the cost to our reputation abroad and, more importantly, our own principles of justice and liberty, apparently so highly prized on these islands?
Our client was detained lawfully, inasmuch as the Detained Fast Track exists and allows for asylum claimants to be detained. We may argue that he was detained contrary to the policy of the Home Office but it is unlikely we would get far with any claim in the civil courts, though we may certainly try.
We relied on the system to grant us a remedy. When it did not, as a result of changes to legal aid funding and judicial review, we were powerless to do much more, relying on a bail application as a last resort. Had we been unable to persuade the Immigration Judge of the merits of our client’s position he may not have been released.
Our client was detained for 18 days for no apparent reason, and he had a lawyer. Is it any wonder that those currently detained in the UK’s Detained Fast Track system are protesting at their treatment?