A return to the detained Fast Track

The Tribunal Procedure Committee is running a consultation on the reintroduction of the accelerated immigration appeals for detained appellants.  This is a surprise move given that the Fast Track Rules were quashed in 2015.

The Fast Track Rules applied a much shorter deadline than existed in the principal Rules and limited the powers of the Immigration Courts to adjourn cases.  In June 2015 the High Court found that the Fast Track Rules were unlawful. Mr Justice Nicol concluded that the Fast Track Rules were structurally unfair, because their abbreviated time table, and restricted case management powers available to the Judges created a serious procedural disadvantage.  The Court of Appeal agreed that the abbreviated time scales made a fair hearing impossible in a significant number of cases and the Court emphasised that speed and efficiency must not trump justice or fairness.  Therefore, the Fast Track Rules were quashed and since then all immigration cases including those involving detained parties have been dealt with under the principal Rules of the First Tier Tribunal.

However, on 12^th October 2016 the Ministry of Justice launched its own consultation on a proposal to expedite appeals for immigration detainees.  The Government response to this consultation was issued in April 2017 and set out the Government’s view that there is a need for specific Rules in respect of appellants in detention.  The Government position is that only specific Rules will achieve a guaranteed maximum time frame for the determination of detained appeals.  The Government also believe that Rules should require that the decision on whether the appellant has permission to appeal to the Upper Tribunal takes no longer than 20 working days.

The Government position is that the new regime should see a time frame of 25-28 working days from lodging the determination in the First Tier Tribunal with a further 20 working days for both Upper Tribunal permission stages.

Bearing in mind the average time frame for an appeal in the First Tier Tribunal at the moment stands presently at 49 weeks, one may well wonder whether already limited Tribunal resources would be better served by addressing these constantly delays.  Instead the focus seems to be on the policy of speedy removals and saving face after the Government’s 2015 defeat.

The justification given for the Fast Track Process is to limit the time migrants are forced to remain detained at great cost to the tax payer. However, if the Home Office were to use detention as a last resort, as they should, there would not be so many appellants in detention in the first place and therefore there would not be a need for the fast track.

I have particular concerns about the changes and the reintroduction of the Fast Track, given that the Fast Track Rules were already accepted as unlawful, they did not provide sufficient time for an appellant to prepare for the hearing of the appeal, and practitioners will need time to make representations to apply for bail, to take instructions on refusal letters, to see clients as often as needed, to prepare statements, arrange for translations, obtain expert evidence, prepare bundles and make proper applications.

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