There are two kinds of accelerated procedures: the non-suspensive appeal procedure (NSA) and the detained fast-track procedure (DFT). The Detained Fast Track Procedure is currently suspended rather than ceased.
Non-Suspensive Appeal (NSA)
Firstly where the claim is certified by the Home Office as clearly unfounded, there is no in-country appeal. These are called Non-Suspensive Appeal (NSA) cases. The majority of cases certified in this way are of applicants from a deemed safe country of origin, but cases are also certified as clearly unfounded on an individual basis. The applicant may often be detained, though not always, and guidance to Home Office decision makers refers to the procedure as a Detained Non-Suspensive Appeal (DNSA). About 7% of claims were certified clearly unfounded in 2016.1 Albania, India, Nigeria, Pakistan and Ukraine were the most common nationalities, between them accounting for 67% of those people whose claims were certified unfounded during 2016.2
The second accelerated procedure is a Detained Fast Track procedure (DFT) where the Home Office consider that the claim is capable of being decided quickly. In theory the two procedures are very different in that NSA implies that there is no merit, whereas DFT is based on speed. However, as described below, informally the DFT also appears to operate as an 'unfounded' procedure.
The most common reason for a claim to be certified as clearly unfounded and thus routed through the NSA procedure is that the asylum seeker comes from a country which is considered to be safe. Countries are treated as safe if they are designated as such in binding orders made under s.94 Nationality Immigration and Asylum Act 2002 or in the Act itself.3 (See section on the Safe Country Concepts).
There is no time limit for a decision to be made in such a case, although the Home Office guidance states that the aim is to decide within 14 calendar days. The Home Office is responsible for making the decision. The policy is that all decisions on a potential NSA case must be made by a caseworker who is trained to make NSA decisions, and must be looked at by a second 'accredited determining officer' who decides whether to accept the first officer's recommendation.4 The Independent Chief Inspector of Borders and Immigration noted a lack of objective standards in accrediting this officer, and of consistent understanding of this role and its remit.5 Guidance to decision makers advises that where the claim is for asylum and human rights protection, both or neither should be certified as unfounded, since any appeals of the two issues must be heard together. The guidance also states that when the asylum seeker comes from a designated state the refusal should not normally be based on the credibility of the individual applicant but on objective country material.6 This is general practice and is unlike the regular procedure where no such guidance is given and refusal is commonly based on credibility.
A claim may also be certified clearly unfounded and routed through the NSA on an assessment of the individual merits of the case, not only on the basis of a deemed safe country of origin (2,805 cases were individually certified in 2016.7 This should only be done where the caseworker considers that the claim is incapable of succeeding before an independent tribunal.8
Not all asylum claimants from designated countries have their claim considered for certification as unfounded. The reason for this suggested to the Chief Inspector was pressure on asylum decision makers to process asylum decisions as quickly as possible to achieve target times for consideration, and the allocation of cases to those who are not trained in NSA procedures.9
Detained-Fast Track (DFT)
The defining characteristics of the DFT procedure have been speed and detention throughout the decision process. The criteria for being routed into the DFT only require that the case is considered after the screening interview to be capable of being decided quickly and that the asylum seeker is not excluded from the DFT.
After a series of legal challenges to the safety and fairness of the DFT process, its operation was suspended on 2 July 2015.10 It has not been reinstated nor abandoned. The final ‘nail in the coffin’ leading to the suspension was the appeals part of the process.11 The Ministry of Justice consulted on the Tribunal Procedure Rules for the DFT in autumn 2016 proposing that new rules be laid to enable these expedited appeals to comply with the law.12 The outcome of the consultation is not yet published.
There are no grounds in the accelerated procedure to omit a personal interview.
The same immigration rules apply to the interview as in the regular procedure (see on Regular Procedure: Personal Interview) but they must be conducted by NSA trained caseworkers in the NSA procedure.
Detained-Fast Track Procedure
In the DFT procedure the interview was required to take place on the day after arrival. In practice asylum seekers in the DFT could wait on average 11 days for an interview.13 The interview was conducted by a Home Office case worker. Unlike the regular procedure, the interview takes place in detention. No study has been done on the impact of personal interviews taking place in detention. Lawyers said that the quality of interviewing in the DFT was less skilful, tending to focus extensively on detail and not on the major issues in the claim.
Transcripts and tape recordings were provided of interviews in the DFT as in the regular procedure. Interpreters were available as in the regular procedure.
In the NSA the appeal is non-suspensive, i.e. they may not be made from within the UK. They must be made within 28 calendar days of leaving the UK.14 The scope of the appeal is the same as for in-country appeals, but in practice it is very difficult to appeal from outside the UK. The Chief Inspector was told that of 114 NSA appeals lodged since 2007, only one appeal had succeeded. The report noted that non-suspensive appeals cases accounted for an increasing percentage of refused asylum seekers removed from the UK, rising to more than a quarter in 2012/13.15
In the DFT no removal would take place until the appeal is decided, but the appeals took place in a building adjoining the detention centre, and detention was maintained until the case is concluded or removed from the DFT.
There have been two different challenges to the lawfulness of detained fast track appeal process. These have resulted in the suspension of the operation of the DFT.
Firstly, detention pending appeal in the DFT was held by the Court of Appeal to be unlawful unless it is justified on normal detention grounds, i.e. with regard particularly to risk of absconding and imminence of removal. The Court found that the practice which had developed in the DFT was to detain people pending appeal in the DFT purely based on the criteria of speed and convenience without considering whether they were at risk of absconding. This was unlawful.16
In a second case, Detention Action challenged the lawfulness of the rules governing the fast track appeals. The rules provide that appeals in the DFT must be made within two working days of receiving the decision;17 The Home Office must respond within two days, the hearing is required to take place three days later,18 and the decision should be given two days after the hearing.19 In practice, the time of fixing the hearing was not observed. Evidence before the High Court in the Detention Action case was that the average period from entry into the DFT until appeal rights were exhausted was 23.5 days. This varied as between centres from 33 days to 16.20
The Court of Appeal held that:
“[T]he time limits are so tight as to make it impossible for there to be a fair hearing of appeals in a significant number of cases…The system is therefore structurally unfair and unjust. The scheme does not adequately take account of the complexity and difficulty of many asylum appeals, the gravity of the issues that are raised by them and the measure of the task that faces legal representatives in taking instructions from their clients who are in detention.”21
The Secretary of State for the Home Department requested permission to appeal the Court of Appeal’s ruling to the Supreme Court. However, on the 12 November 2015, the Supreme Court refused the Government’s permission to appeal thereby rendering the Court of Appeal's judgment definitive.22
Since DFT appeals have been found to be unlawful, and the system suspended, people whose appeals were heard in the DFT should now have their appeals reheard, and should only be detained if their detention is allowed within the terms of normal detention policy. They cannot be removed until the appeals have been reheard. This was confirmed by the President of the Tribunal in First Tier Tribunal decisions on 4 August 2015.23 The President provided a standard letter for appellants to apply to the FTT to have their appeal decision set aside and reheard.
In a judgment that was promulgated on 20 January 2017,24 the High Court found that the unlawful policy had been in operation from 2005 to 2014, affecting many more asylum seekers.
Unlike in the regular procedure, fast track detainees are entitled to have a publicly funded legal adviser present at their initial interview. However, the judge commented in the 2014 Detention Action case that:
“Legal representatives are not excluded from the interview, if the applicant already has a representative, but where the applicant does not have one, the presence of a lawyer is not facilitated.”25
Asylum seekers in the DFT were not guaranteed legal representation before the tribunal. Research in 2011 revealed that 63% of asylum seekers were unrepresented at their DFT appeal,26 and Freedom of Information requests showed that in 2012, 59% asylum-seekers in Harmondsworth were unrepresented at the first appeal. 1% won their appeals, compared to 20% of those with a representative.27
To obtain publicly funded legal advice in making their claim they were limited to a representative from a solicitors firm with a contract to do DFT work and who was available. There is substantial dissatisfaction among asylum seekers with the quality of legal representation available in the DFT. Lawyers who work in the DFT say that it is very difficult to do the work effectively. They may have no opportunity to take instructions or meet the client before the asylum interview. This was endorsed by the High Court in the 2014 Detention Action judgment.
- 1. Immigration Statistics: October to December 2016 Asylum Table AS01, February 2017.
- 2. Immigration Statistics: October to December 2016 Asylum Table AS01, February 2017.
- 3. Section 94, NIAA 2002, available at: http://bit.ly/1eqvY4g.
- 4. UK Visas and Immigration, Asylum decision-making guidance: Non-Suspensive Appeals (NSA): Certification under s.94, para. 2.3, available at: http://bit.ly/1CfhMAf.
- 5. Independent Chief Inspector of Borders and Immigration: An Inspection of the Non-Suspensive Appeals process for ‘clearly unfounded’ asylum and human rights claims July 2014, available at: http://bit.ly/1Bq4LIW.
- 6. UK Visas and Immigration, Asylum decision-making guidance: Non-Suspensive Appeals (NSA): Certification under s.94, para. 2.2, available at: http://bit.ly/1CfhMAf.
- 7. Home Office Research and Statistics Directorate, Immigration Statistics: Asylum Table AS01.
- 8. NA (Iran) v SSHD  EWCA Civ 1172.
- 9. Independent Chief Inspector of Borders and Immigration: An Inspection of the Non-Suspensive Appeals process for ‘clearly unfounded’ asylum and human rights claims July 2014.
- 10. House of Commons: Written Statement (HCWS83) Home Office Written Statement made by: The Minister of State for Immigration (James Brokenshire).
- 11. See ‘round three of the Detention Action blog summarising the legal challenges http://bit.ly/2jITAYA.
- 12. More information available at: http://bit.ly/2l7kEBS.
- 13. Independent Chief Inspector of Borders and Immigration, Asylum: A Thematic Inspection of the Detained Fast Track, ICIBI, 2012, available at: http://bit.ly/1JXaARf.
- 14. The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 SI 2604 rule 19.
- 15. Independent Chief Inspector of Borders and Immigration: An Inspection of the Non-Suspensive Appeals process for ‘clearly unfounded’ asylum and human rights claims July 2014.
- 16. R (on the application of Detention Action) v SSHD  EWCA Civ 1634.
- 17. The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 SI 2406 Schedule rule 5.
- 18. The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 SI 2406 Schedule rules 7 and 8.
- 19. The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 SI 2406 rule 10.
- 20. Detention Action v SSHD Equality and Human Rights Commission intervening  EWHC 2245 (Admin) para 83.
- 21. The Lord Chancellor v Detention Action  EWCA Civ 840, para 45.
- 22. Detention Action, The Detained Fast Track: the end of the road, 12 November 2015, available at: http://bit.ly/1MCHLKh.
- 23. Upper Tribunal, Appeal ref. AA/09953/2014; 10216/2014; 04846/2015; PA 00087/2015; AA/ 03971/2015; 05737/2015; 02797/2015; 03692/2015.
- 24. R (TN) v Secretary of State for the Home Department  EWHC 59 (Admin), High Court, 20 January 2007, available at: http://bit.ly/2kPYike. See also Detention Action, ‘High Court rules asylum-seekers denied justice in detention for 10 years’, 20 January 2017, available at: http://bit.ly/2kfJNGQ.
- 25. Detention Action v Secretary of State for the Home Department  EWHC 2245 (Admin), para 96.
- 26. Tamsin Alger and Jerome Phelps, Fast Track to Despair, Detention Action, 2011, available at: http://bit.ly/1LhrIl6.
- 27. Detention Action, DFT Briefing, 2013, available at: http://bit.ly/1JX05NV.