Yesterday's Court of Appeal judgment ought to be the end of the line for the systematic incarceration of asylum-seekers in the UK.
For the fifth time, the British courts have concluded that the Detained Fast Track asylum process is operating unlawfully. Two years of litigation by my organisation, Detention Action, have led the Court of Appeal to conclude that the rules governing the appeals process for detained asylum-seekers are 'systemically unfair and unjust.'
The Fast Track is, or was, a deeply strange corner of the justice system. Between 2,000 and 4,000 asylum-seekers per year, 10-20% of the total, would go through it. Not because their claims were thought weak, but simply because they appeared to the Home Office suitable for a quick decision.
On claiming asylum, they would find themselves immediately thrust into what seemed like a prison. They would make their asylum claim from their detention cells. If refused (and the refusal rate varied between 98% and 99%), they had two days to appeal. A mere seven days after finding out, to your shock, that the Home Office does not believe that you are gay, that you were tortured or trafficked, you would be in court, expected to present written evidence for your appeal. This written evidence, in the form of an expert report or a letter from your partner in hiding in Pakistan, would have somehow been obtained from your detention cell.
In practice, most of the time, it was impossible to get this evidence. You were refused. You were deported.
Over the last twelve years, I have met many hundreds of people in this situation. Beside themselves with stress, anxiety and confusion. Trying to believe that this was really Britain.
No longer. Last month, the High Court upheld our claim that the Fast Track appeals process was unlawful. Days later, the Home Office conceded a case brought by four survivors of torture, supported by the Helen Bamber Foundation, which argued that the system had been operating unlawfully for vulnerable people. That same week, the Immigration Minister James Brokenshire acknowledged to Parliament the problems of the Fast Track and announced its suspension.
Yesterday's judgment should dispel the illusion that these problems are quickly rectifiable. No arcane legal arguments were needed by our extraordinary legal team at Migrants' Law Project: the test is simply whether there is 'systemic or structural unfairness inherent' in the rules governing the appeal process. The Court of Appeal agreed with the High Court that there was: the deadlines for asylum-seekers are just too tight, a fair hearing must be impossible in a significant number of cases.
This is not necessarily the end of the story. The government still has options to try to save the Fast Track. It can seek permission to appeal to the Supreme Court - but after decisive defeats in both lower courts, this cannot appear a particularly attractive option. Or it can ask the Tribunal Procedures Committee, the judge-led body that sets the rules for the appeals process, to come up with new rules. However, in order to comply with the Court of Appeal judgment, it is hard to see that those rules could be very different from the rules of the mainstream asylum process.
Therein lies the rub, and the biggest reason why the Government should give up on this discredited system. The legitimate aims of the Fast Track, the quick processing of asylum claims, can be achieved by the normal asylum process, without locking people up. Nothing in the judgments prevents the Home Office from processing claims quickly, or even from having a separate accelerated asylum procedure. Most comparable European countries have accelerated asylum processes for apparently straightforward cases (weak and strong). The difference is that none of these processes involves routinely locking people up.
There is ample evidence from around the world that asylum-seekers rarely abscond during the asylum process. They hope to be granted asylum and live here lawfully, so why would they run away? Community-based alternative to detention projects in countries like Australia have seen compliance rates of up to 99%. Indeed, the Home Office's own policy guidance acknowledges that asylum-seekers are generally not at risk of absconding.
In fact, the government is already taking small but significant steps away from the chronic overuse of detention that was savaged by a cross-party Parliamentary inquiry in March. Expansion of one detention centre was cancelled; another centre was closed outright. The Home Secretary announced a review into the welfare of people in detention, following a series of allegations of mistreatment and breaches of the Article 3 prohibition on torture or degrading treatment. The Minister told the House of Lords that 'the direction of travel' is towards reducing detention.
The background to all of this, of course, is austerity. Detention costs the taxpayer over £164 million per year, and is notoriously inefficient in terms of actually deporting migrants. While the Home Office draws up plans for budget cuts of up to 40% on top of previous cuts to staffing, it is inevitable that there will be hard looks at the bill for what is the second largest detention estate in Europe. Ending the Fast Track and reducing unnecessary detention would amount to a huge step towards a system that could work both for taxpayers and migrants.