July 18 2024
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Locked up and shipped out: Fast track asylum

Locked up and shipped out: Fast track asylum

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Refugee child, Smithsonian

Refugee Child, by William H. Johnson, from Smithsonian Institution (Flickr)

Last month, Channel 4 News reported the Home Office’s removal from the UK of a client of mine. She was a Sri Lankan Tamil asylum seeker, who claimed that she had been detained, raped and tortured by soldiers in Sri Lanka due to her political opinion. Some time after escaping from detention and travelling to the UK, she claimed asylum and was interviewed by the Home Office. She was cross-examined on the specific details of her detention, rape and torture and her case was allocated to the Detained Fast Track (DFT): a process by which asylum seekers are detained at immigration removal centres and their claims processed as quickly as possible to effect their quick removal from the UK.

In theory, the DFT is a means by which the Home Office can expedite asylum cases that are supposedly suitable for a speedy decision. But in reality, it is an unjust system that allows for cases with the gravest of consequences to be decided on a whim and acts as another trophy for the Government to hold aloft in the hope of appearing tough on immigration.

Just days after my client had given the Home Office her gruesome account of events in Sri Lanka, her asylum claim had been refused and she was up before the judge, appealing against the Home Office’s refusal. She met me, her barrister, for the first time that morning in the cramped conference room of a detention centre that doubles up as a courthouse. She looked scared and sheepish on the other side of the pane of glass that separated us. I had less than half an hour to introduce myself, explain legal procedures, gain her trust and, of course, ask her about her detention, rape and torture. All of this was done through a Tamil interpreter. Barely five feet away from us sat another barrister and his client, simultaneously having a conversation in another language about another case. Sobbing, my client recounted an abridged version of her story through the interpreter, repeating herself in a raised voice several times to be heard over the others in the room. Despite this tribunal often dealing with cases involving horrific rape and torture, private meeting facilities are not provided here.

It quickly became clear that, as in many cases allocated to the DFT, there was a significant amount of evidence that could be obtained to assist her case. This was evidence that she could not get to, however, because she was detained without warning when she went to claim asylum and the documents that she sought were under lock and key in her flat. Nor had there been time to instruct a psychiatrist to prepare an expert report to address whether she may indeed have been raped and tortured in detention in Sri Lanka. It was clear that she needed an adjournment in order to prepare her case properly.

Easier said than done. Immigration judges are notoriously reluctant to adjourn cases in the DFT because they are expected to be dealt with swiftly. Indeed, the procedural rules that govern the way in which they are handled set out a presumption against adjournments. Even if an adjournment is granted, it can only be for a maximum of ten days unless the case is removed from the DFT altogether, which is more difficult still to achieve. Predictably, then, in my client’s case, an adjournment was refused, the judge ruling instead that she could explain in her oral testimony what the evidence in her flat would have shown. The appeal hearing began and she recounted once again her awful experiences under the cross-examination of the Home Office lawyer and the questioning of the judge.

Her appeal was ultimately dismissed. Permission was refused to appeal against the judge’s decision, too, because he had gone through those steps considered proper in order to reach his decision. As her solicitor continued to try to obtain further evidence to support her case, the Home Office prepared to remove her from the UK. Further evidence was obtained and sent to the Home Office but it was not considered. Dragged kicking and screaming from her cell to the airport, she was put on an aeroplane to Sri Lanka and, as she was awaiting take-off, the Home Office finally considered her further evidence. It was rejected in a short, cobbled-together decision letter that referred to her in the masculine throughout. It took an out-of-hours telephone call to a High Court judge for an emergency injunction to prevent her removal and she was taken off the flight twenty minutes before it departed.

But she remained in detention. More evidence still was obtained: this time, the expert report from a psychiatrist that we had wanted from the outset. Based on a detailed psychiatric examination, it suggested that she had indeed been raped and tortured in Sri Lanka and was suffering from significant mental health problems as a result. It criticised the way in which the Home Office had interviewed her and assessed her asylum claim: jumping back and forth between events, asking questions in misleading ways and then relying on supposed discrepancies to suggest that her account was incredible. It identified her answers to questions from the psychiatrist and her demeanour when being asked them as typical of a rape victim. And it suggested that the supposed discrepancies on which the judge relied in dismissing her appeal were in fact, again, typical and did not suggest that her account was untrue.

Nonetheless, the expert report was rejected by the Home Office without any psychiatric evidence to the contrary and another removal date was set. All the while, she languished in detention in spite of the Home Office’s policy not to detain those in relation to whom there is independent evidence of torture.

This time, it was more difficult to stop her removal. The tenor of the judges dealing with her applications on paper was that her case had been considered in detail by the judge the first time around and her further evidence had been rejected by the Home Office. And so, earlier this month, she was removed to Sri Lanka.

Her sorry tale is not uncommon in the DFT. No doubt the Home Office feels that it was justified to allocate her case to it, largely on the basis that there was a significant delay between her entering the UK and claiming asylum. But let us put that in perspective: is a woman who lacks experience in international travel and has been raped and tortured by the authorities of one country really expected to throw herself into the arms of the authorities of another country the moment that her flight touches down? Sadly, such considerations are too often lost in the DFT, where expediency triumphs over good sense and far more meritorious cases are allocated to it than the Home Office would like to admit.

Since my client’s removal, the High Court has ruled that the DFT as it is presently operated is unlawful, carrying ‘an unacceptably high risk of unfairness’. Mr Justice Ouseley criticised deficiencies in screening out those cases which are unsuitable for detention or a quick decision and described as ‘indefensible’ the fact that detainees may be left on average for a week without access to lawyers, delaying the preparation of their cases under already strict time constraints. Disappointingly, however, it was found that, if the issue of access to lawyers were addressed, the DFT would cease to be unlawful because it is not inherently unfair.

I beg to differ. In our criminal courts, months and years can be spent in preparation for a trial of rape or murder. It is telling how little weight the Government places on its international and moral obligations when more time can be permitted for the preparation and hearing of a road traffic trial at the magistrates’ court as compared to an asylum appeal, where the potential consequences are life and death.

At a time when Australia, whose immigration system our Government admires so much, is summarily ‘processing’ Sri Lankan asylum seekers’ claims at sea and sending them back as quickly as they arrived, let us hope that ours does not degenerate further into a box-ticking exercise. Getting rid of the DFT would be a good place to begin.

This article originally appeared on Faraz Shibli’s blog

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