Blog post by Andrew Pitt, Queen Mary, University of London, and forms part of a series of blog posts responding to the UK Home Office’s New Plan for Immigration.
In this blog, I examine the proposals in the Government’s New Plan for Immigration regarding the speeding up of asylum decision making and the detention of asylum seekers. While the proposal claims that it is introducing new mechanisms for addressing delay in the asylum system, in fact the proposals mirror closely the former policy of so-called Detained Fast track which was found to be unlawful by the courts.
The questions in the consultation on the Plan which I will address here are Question 23 (Chapter 4) and Question 27 (Chapter 5), both of which, address, among other things, the proposal to fast-track appeals.
It has become an all too familiar trope of restrictive immigration reform proposals to open with reference to past generosity. Following suit, the policy statement for the UK government’s New Plan begins by affirming the UK’s ‘proud history of being open to the world’ and proceeds to champion the resettlement of 25,000 refugees since 2015. Between the rose-tinted view of a colonial past and selective use of statistics the subtext: we have paid our dues; we can afford to be less generous in the future.
Among the policies envisaged are: the use of ‘reception centres’ to ‘provide basic accommodation’ and to ‘help speed up processing of claims and the removal of people who do not have a legitimate need to claim asylum in the UK’; a fast-track appeals process; and the return of a fast track system for appeals of detainees. The government indicates that the first of these measures will be in line with its statutory obligations (presumably the Human Rights Act 1998). It is said that the second measure ‘seeks to deliver’ a service that is ‘simple, fair and accessible to everyone’. Similarly, it is said that the fast-track appeals for detainees will provide ‘fair access to justice’, with ‘clear timescales for concluding the process’ and ‘safeguards to allow cases to be transferred out of the accelerated process when it is in the interests of justice to do so’. Importantly, the second and third measures will be set in legislation.
Despite the invocation of the use of ‘reception centres’, there is little doubt that by these measures the government seeks to re-introduce a detained fast track. This blog post looks to the past to question the viability and validity of the current proposals. It notes that detention of asylum seekers should only be used as a last resort and that the government must accord only the highest standards of fairness in the refugee status determination process. This the internationally recognised standard included in the Global Compact for Safe, Orderly and Regular Migration 2018 (Marrakesh Compact) which the UK endorsed in 2018.
Detention of Asylum Seekers – Last Resort
In international refugee law the position is clear: immigration detention must only be used as a last resort. Article 31 of the Convention relating to the Status of Refugees 1951 obliges states to not ‘impose penalties, on account of their illegal entry or presence, on refugees who […] enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence,’ and to only apply restrictions on movement of such refugees ‘which are necessary’. Detention which is not necessary in all of the circumstances is considered arbitrary for the purposes of Article 9 of the International Covenant on Civil and Political Rights, (A v. Australia, Human Rights Committee, Communication 560/1993).
If necessary, which must be decided on an individual basis, detention must not be employed for the whole status determination process. The UNHCR’s Detention Guidelines instruct that ‘[d]etention can only be resorted to when it is necessary, reasonable in all the circumstances and proportionate to a legitimate purpose’ (Guideline 4.2). One of only three legitimate purposes is ‘public order’ and under this heading the Guidelines permit the use of detention for accelerated procedures solely in the case of manifestly unfounded or clearly abusive claims. Necessity precedes the use of such detention, and alternatives to detention must be considered to ‘[ensure] that detention of asylum-seekers is a measure of last, rather than first, resort’ (Guideline 4.3).
This position is reflected in objective 13 of the Marrakech Compact to: ‘Use immigration detention only as a measure of last resort and work towards alternatives’. As noted above, the UK endorsed the Marrakech Compact in 2018 and thereby committed to ‘ensure that any detention in the context of international migration follows due process, is non-arbitrary, is based on law, necessity, proportionality and individual assessments.’
Looking to the past, it is worth noting that this position previously had support across the UK political spectrum. On 10 February 1997, Baroness Blatch, then Minister of State for the Home Office, informed Parliament: ‘The Immigration Service only uses detention where there is no alternative and where there are good grounds for believing that the person will not comply with any conditions of temporary admission.’
The Detained Fast Track – Unlawful
The UK government first retreated from this international law standard with the introduction of a fast track refugee status determination regime employing detention at the former Oakington barracks in early 2000. Relying on powers under the Immigration Act 1971, for the first time, the UK used detention to speed up the processing of initial decisions on asylum claims. Despite falling foul of international human rights law’s necessity requirement and international refugee law’s requirement that detention not be used for the full determination of claims, the system was found to be lawful by the House of Lords and the European Court of Human Rights in the case of Saadi. The essence of these judgments was that the exception to the right to liberty in relation to immigration control in article 5(1)(f) of the European Convention of Human Rights did not require that such detention be necessary. The court did, however, suggest some limits on the use of detention: they were swayed by the ‘suitable’ conditions at Oakington, the access to on-site legal aid, and the short period of detention (which was initially 7-10 days). Both upper courts also relied upon the number of persons claiming asylum at the time, citing 84,000 in the preceding year. Though incidental, it is worth pointing out here that the number of claims in recent years has been significantly lower.
Following Saadi, the UK government expanded its regime to include an accelerated procedure for the determination of appeals, the detained fast track (‘DFT’). The Refugee Legal Centre, which had provided legal aid at Oakington, refused to take part in this new system. Its 2004 legal challenge on the grounds of unfairness was unsuccessful, in large part because of the access to a fully qualified legal adviser at all stages of the process. Yet two important maxims were reiterated by the Court of Appeal: ‘asylum decisions are of such moment that only the highest standards of fairness will suffice’ and, ‘administrative convenience cannot justify unfairness’ ().
Ten years later, the unfairness always present in the regime finally resulted in its unravelling. In a series of challenges it was found that: the safeguards meant to keep vulnerable applicants out of the system were failing and that the late access to legal advice rendered this unlawful; that the inclusion of the appeals regime was unlawful for a lack of clarity and transparency, and, obiter, that it was not justified; and, finally, that the delegated legislation supporting the appeals regime was itself unlawful and ultra vires due to inherent unfairness. It is notable that none of these cases reached the Supreme Court, which has thus yet to assess the lawfulness of the use of detention for the entirety of an asylum claim – however, as outlined above, this clearly breaches international law.
An Unjustifiable Cost
The return to the use of detention for the processing of asylum claims, and particularly appeals, is not only unjustified in law but also bears an unjustifiable cost. It is perhaps unsurprising that records of the cost of the DFT regime are hard to come by. They were not published, however, as the Independent Chief Inspector of the UK Border Agency reported in 2011, ‘Detention is more than twice as expensive as the accommodation and support costs for people whose claims are being processed in the non-detained asylum system.’ Global Britain cannot afford a return to the detained fast track. The key to efficient, cost-effective processing of asylum claims lies elsewhere.
There is little doubt that the government’s current proposals have been informed by the experience of the DFT – through the use of ‘accommodation centres’ the government seeks, through a technicality, to avoid ‘detaining’ vulnerable persons (and it is concerning that the government has recently resorted to the use of remote and unsuitable barracks for this purpose at severe risk to the health of those held there). In announcing its intention to pass legislation on a new fast-track appeals process, it is evident that the government is seeking to circumvent judicial review based on requirements of the right to liberty and fairness. Yet, the legislative removal of procedural fairness, a fundamental right owed to all persons within the jurisdiction, only sets the stage for other confrontations in the courts which must uphold this key requirement of the rule of law.
The deleterious effects of detention are well-documented, known to Parliament and undeniable. Its use in the processing of claims for asylum is incompatible with the requirement that such determinations be subject to only the highest standards of fairness. Global Britain must aspire to uphold those standards – these proposals must be rejected.
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.