The Refugee Legal Centre, R (on the application of) v Secretary of State for the Home Department

This is the judgment of the court on the appeal of the Refugee Legal Centre (RLC) from the decision of the Administrative Court [2004] EWHC 684 (Admin), [2004] Imm AR 142. By that decision, Collins J on 31 March 2004 declined to hold that the fast-track system of asylum adjudication at Harmondsworth Removal Centre was inherently unfair or therefore unlawful. Permission to appeal was granted by this court, partly on the ground that the issue was on any view of sufficient importance to merit this court's attention. The appeal was expedited, and we heard argument on 6 October 2004.

The following account of the system is taken verbatim from the judgment below:

On 18 March 2003 the defendant announced that it was proposed to set up a new fast track pilot scheme to deal with certain asylum claims. It was to operate at the Harmondsworth Removal Centre near London (Heathrow) Airport. It followed the decision of the Court of Appeal in ZL v Secretary of State for the Home Department [2003] 1 W.L.R. 1230 which upheld the lawfulness of the Oakington procedure in a claim which asserted inter alia that the process was unfair in that applicants were not given a fair opportunity to show that they had at least an arguable claim.

The Harmondsworth scheme was to apply to those who were considered to have straightforward claims and who could be detained pending a quick decision. There was, it was said, to be “a sharp focus on high-quality decision making, with on site access to legal advice and, so far as possible, the same caseworker and legal representative dealing with an application from start to finish”. It was ‘to build on the successful Oakington process’. It is limited to single male applicants from countries which are believed by the defendant to be those where in general there is no serious risk of persecution.

There is a screening process to identify those suitable for the fast track. 58% come from port of entry and 42% are in country referrals, although many of the latter may have arrived as illegal entrants. Some, however, will be overstayers or others who have been here for some time and who claim asylum when discovered to try to avoid removal. Those considered suitable are taken to Harmondsworth. Before arrival, a duty solicitor or, if the applicant has his own legal representative, that representative is informed of his estimated time of arrival and when he is to be interviewed. Normally, the interview will take place in the afternoon of the day after arrival, allowing the morning for instructions to be taken by the representatives. An interpreter will be provided if necessary (as is very often the case). There is what is described as an induction interview when the applicant arrives in the course of which he is informed of when he is to be interviewed and that he will be provided with legal representation, free of charge, if he has none. When the scheme started, there were occasions when an asylum interview did take place on the day that the applicant arrived at the centre, but, following a review of the procedures after the raising of concerns that this was too tight a timescale and was unfair, that has not occurred since the end of July 2003.

More experienced officials, mainly Presenting Officers who used to represent the Home Office on appeals, have been drafted in to conduct the asylum interviews. These normally last between 1 ¾ and 2 ¾ hours. It is up to the officer how he conducts the interview and the extent to which breaks are needed. He is instructed that he must ensure that the applicant is fit and well and that he must adopt a sensitive approach and be prepared to be flexible and accede to any reasonable application for a break or indeed for further time. He must also be aware of the possibility that any applicant may need to be taken out of the fast track if, for example, medical or other evidence may need to be obtained or the claim turns out not to be so straightforward as was initially believed. The second day is thus taken up with instructions to the legal representative in the morning and formal asylum interview in the afternoon. On the following day, the decision is made. This will usually be a refusal. Unlike the Oakington system, the claim is never certified and so a right of appeal in all cases is provided. This must be exercised within 2 days and the hearing before an adjudicator takes place on the next day. His decision is given the next day whereupon there are 2 days to apply for leave to appeal to the Immigration Appeal Tribunal (I.A.T.). That is determined within 3 days. If permission is granted, a tribunal hearing takes place two days thereafter and the decision is given the next day. If permission is refused, there are 10 working days to seek statutory review under s.101 of the 2002 Act. This court will deal with that application within a week. Thus the whole process in the case of a refusal which is upheld by all the appellate bodies can be over within 5 weeks.

The most recent statistics provided by the Home Office are that 1,438 cases have been placed on the Harmondsworth fast track. 151 of these were removed from the fast track before an initial decision was taken. Of 1,207 initial decisions, all but 5 were refusals of asylum. A further 270 were removed from the fast track pending appeal. Of 995 appeals decided by adjudicators, 19 were allowed; and of 16 further appeals to the IAT, one succeeded. Three of the 57 applications for statutory review also succeeded.

The challenge is brought by the Refugee Legal Centre (RLC), an independent not-for-profit organisation concerned with the provision of legal services to those seeking humanitarian protection in the United Kingdom. The RLC has not participated in the Harmondsworth system, which it did not consider capable of functioning fairly. Its concerns have been echoed by the Immigration Advisory Service, the Law Society and the Immigration Law Practitioners' Association.

Rightly, no objection has been taken by the Home Office to the standing of the RLC in these proceedings. If an asylum-seeker is unfairly dealt with at interview, by the time any claim on his behalf can be put before the Administrative Court he will have had his appeal dealt with and in all probability (see the figures above) dismissed, so that the case will be arguably moot by the time public funding can be sought and a judicial review application heard. There may of course be individual cases where an interview is said to have been so unfair as to have infected everything that followed, but such cases will decide nothing about the system itself. This application is thus a good example of how a body such as the RLC may not only have standing but be best placed to bring an important question such as the present one before the court.

But what is the question? Mr Michael Fordham, appearing pro bono with Mr David Pievsky for the RLC, began by submitting that it was whether the system was capable of operating fairly. It is plain, however, as Mr Fordham accepted, that in a straightforward case, such as where the applicant himself has advanced no Convention reason for his persecution, or where what he fears cannot on any possible view be persecution, the system, however speedy, is perfectly capable of operating fairly. A more appropriate question, in our view, is the one posed by Mr Robin Tam for the Home Secretary: does the system provide a fair opportunity to asylum-seekers to put their case? This avoids the arbitrariness inherent in Mr Fordham's alternative approach of seeking to construct a 'typical' case. It embraces, correctly, the full range of cases which may find themselves on the Harmondsworth fast track. There will in our judgment be something justiciably wrong with a system which places asylum seekers at the point of entry - that is to say, when no more is known of each one than that he is an adult male asylum-seeker from a country on a departmental 'whitelist' - at unacceptable risk of being processed unfairly. This, therefore, is the question which we propose to address.

We accept that no system can be risk-free. But the risk of unfairness must be reduced to an acceptable minimum. Potential unfairness is susceptible to one of two forms of control which the law provides. One is access, retrospectively, to judicial review if due process has been violated. The other, of which this case is put forward as an example, is appropriate relief, following judicial intervention to obviate in advance a proven risk of injustice which goes beyond aberrant interviews or decisions and inheres in the system itself. In other words it will not necessarily be an answer, where a system is inherently unfair, that judicial review can be sought to correct its effects. This is why the intrinsic fairness of the fast-track system at Oakington was dealt with by this court as a discrete issue in R (L) v Home Secretary [2003] EWCA Civ 25, [2003] 1 WLR 1230, §48-51.

The choice of an acceptable system is in the first instance a matter for the executive, and in making its choice it is entitled to take into account the perceived political and other imperatives for a speedy turn-round of asylum applications. But it is not entitled to sacrifice fairness on the altar of speed and convenience, much less of expediency; and whether it has done so is a question of law for the courts. Without reproducing the valuable discussion of the development of this branch of the law in Craig Administrative Law (5^th ed.), ch.13, we adopt Professor Craig's summary of the three factors which the court will weigh: the individual interest at issue, the benefits to be derived from added procedural safeguards, and the costs to the administration of compliance. But it is necessary to recognise that these are not factors of equal weight. As Bingham LJ said in Thirukumar [1989] Imm AR 402,414, asylum decisions are of such moment that only the highest standards of fairness will suffice; and as Lord Woolf CJ stressed in R v Home Secretary, ex parte Fayed [1998] 1 WLR 763,777, administrative convenience cannot justify unfairness. In other words, there has to be in asylum procedures, as in many other procedures, an irreducible minimum of due process.

Mr Fordham has sought to pitch his critique no higher than is strictly necessary. Although the Harmondsworth fast track compresses into three days what the Oakington fast track allows a week for, he accepts that this cannot be determinative. He does, however, rely on Oakington (where the RLC is content to participate) as illustrative of what fairness requires. At Harmondsworth, he submits, the process is inherently unfair because it compresses into a single day - the day after arrival - the sole interview with a legal representative and the asylum interview itself, with no formal opportunity to make supplementary representations before, next day, a written decision is given. The pressure on the asylum-seeker, it is argued, is even greater because the minimum interval between the two interviews is only half an hour. Many (over half, in fact) of these asylum-seekers have arrived only the day before at a UK airport often after a gruelling and prolonged journey from, say, Afghanistan or Ecuador or the Central African Republic (all countries on the particular departmental 'whitelist'). Others have just emerged from clandestine and arduous overland journeys.

The risk that such a person, albeit with an honest and legally sound claim to asylum, will fail to do himself justice and be refused is, Mr Fordham submits, inherent in so pressured a system. The applicant has first to accept and trust the stranger who is offering to advise and represent him. He has then, in less than three hours, to recount and explain what it is that has brought him to the UK to seek asylum, and in turn to understand the purpose of the official interview which is about to follow. Within possibly half an hour he then has to face the interview. Any omission to explain himself properly can be repaired only if the representative, after taking further, post-interview, instructions and, perhaps, working late into the evening, can then get the further information to the decision-maker before the decision is made - a matter of pure chance. None of this, says Mr Fordham, happens at Oakington, and there is no good reason why it should happen at Harmondsworth. Factoring one more day into the process, so that the interview with the representative took place the day after arrival and the asylum interview the day after that, would have two critical effects: it would give the asylum-seeker an unpressured day in which to give instructions and obtain advice, and it would give a space after the asylum interview in which supplementary submissions could be made, provided that on the fourth day the decision was not made until the afternoon. As Mr Fordham legitimately points out, no evidence from the Home Office (which has declined to disclose its own evaluation of the system) demonstrates that such a timescale is impracticable or over-costly.

Mr Tam does not dispute that if the Home Office adhered rigidly to such a system it would be acting unlawfully. He points to evidence that the contrary is the case. First of all, in general only single males with no dependants on their claims are put into the system, and not all of these: those with a case which can be seen on presentation to be unsuitable by reason of its complexity are kept out of it altogether. Those whose age or medical condition makes the fast track inappropriate are also kept out of it. All this is done by prior screening, followed by telephone contact with Harmondsworth. Problems with prolonged periods of holding and transfer to Harmondsworth have been resolved. The duty solicitor (or directly instructed representative) is notified of the estimated time of arrival and of the asylum interview, and the services of an interpreter are arranged. On arrival, the coming procedure and the availability of free legal representation, funded by the Legal Services Commission, are explained to the applicant. Some 35 solicitors' firms participate in the scheme, of which about 70 per cent of applicants take advantage. The asylum interview is ordinarily fixed for 2 pm on the second day, giving the morning for the meeting with a legal representative and time for lunch. The interview generally lasts for between 1¾ and 2¾ hours. This may include breaks for refreshment, at the discretion of the interviewer. At the end of it, a copy of the interviewer's notes is given to the applicant's representative, and the applicant is told that a decision will come the next day.

The Harmondsworth project manager, Mr Alan Mungham, in his witness statement describes the elements of flexibility in this system. Applicants whose claims turn out to be "particularly complex" or to require expert evidence, or who have medical problems, are removed from the system: 45 of them by early January 2004. The Procedure Rules make analogous provision for removal from the appeal tier of the system in exceptional cases. In general, he says, "caseworkers at Harmondsworth are encouraged to adopt as flexible approach as possible without compromising the integrity of the process".

There, says Mr Fordham, is the rub. If "the integrity of the process means", as it appears to mean, forcing all cases save those which have to come out of the system altogether into the three-day straitjacket - in reality, for the applicant, a two-day straitjacket - then it is indeed fraught with an unacceptable risk of unfairness.

A good deal of attention was devoted before the judge and before us to the apparent paucity of complaints from the participating law firms about the system, but also to the content of those complaints that had been recorded. We do not propose to examine these because we find the exercise unhelpful. Many, perhaps most, lawyers are accustomed to making the best of the conditions, however poor and stressful, in which they find themselves obliged to work. Those who do complain may have other reasons for doing so. We simply cannot know. Both sides find grist to their mill in this subjective material; but our task is, so far as we are able, to make an objective appraisal of the fairness of the Harmondsworth system.

It was urged on us by Mr Tam that, while one could never guarantee against error in the initial decision-making process, the built-in access to the Immigration Appellate Authority was there to cure any such error. While this will no doubt afford sufficient redress in many individual cases – and so tends to reduce the risk of unfairness in the system, viewed as a whole - we do not consider that it is a sufficient answer to the issue raised by the RLC. First of all, an applicant is entitled not only to a fair appeal but to a fair initial hearing and a fair-minded decision. Secondly, and perhaps more important, the consequences of the risk which most concerns the RLC may very well not be susceptible of appeal. If the record of interview which goes before the adjudicator has been obtained in unacceptably stressful or distressing circumstances, so that it contains omissions and inconsistencies when compared with what the applicant later tells the adjudicator, the damage may not be curable.

Our own concern has crystallised in the fact, which emerged in the course of argument, that no test or standard for the adaptation of the 3-day timetable to individual needs has been formulated by the Home Office. Mr Tam tells us on instructions that readiness to be flexible is a "deeply ingrained" part of interviewing officers' instructions. We do not consider that this is good enough.

If one looks at the letter sent by the Home Office's director of asylum and appeals policy, Mr Richard Westlake, to the director of the RLC on 5 September 2003, one reads: "If the applicant is fit and well for interviews to proceed, we can see no overriding unfairness in having two interviews on the same day…. [T]he timetable is indicative. Although there is no time scheduled for further representations to be made, if a request is made during the course of the substantive asylum interview, it will be refused only if the circumstances suggest that there is no new evidence which will add to the claim." While these are proper caveats, they are question-begging. What amounts to fitness for interview? Does new evidence include legal research and submission? While we have seen evidence that unsuitable cases are taken wholly out of the system, we have seen none to show that in other cases (and it is inconceivable that such cases do not arise) the timetable is extended so that, for example, distressed and exhausted applicants are not put through the whole double-interview process in a single day, or so that after an unusually difficult asylum interview a suitable interval is allowed for further advice and representations. The caveat on "compromising the integrity of the system" may well be operating as a block on flexibility.

What is lacking, in our judgment, is a clearly stated procedure - in public law, a policy - which recognises that it will be unfair not to enlarge the standard timetable in a variety of instances. A worthwhile source of guidance as to these can be found in the Immigration Law Practitioners' Association best practice guide, Making an Asylum Application. For example:

Should any additional statement be submitted?

Should any further evidence or written representations be submitted?

Should an expert's report be submitted?

Should any complaint as to the conduct of the interview be made?" (Ch.8).

If the overriding goal of not "compromising the integrity of the process" is not to operate as a formula for refusing ever to extend the standard timetable - and Mr Tam rightly disavows any such intention - then systematic regard must be had by interviewing officers to these and similar matters. To assert, without any real evidence to support it, that a general principle of flexibility is "deeply ingrained" is not good enough. Putting the relevant issues in writing - and we assume without question that what is put in writing will be made public - is not simply a bureaucratic reflex. It will concentrate official minds on the proper ingredients of fair procedure; it will enable applicants and their legal representatives to know what these ingredients are taken to be; and if anything is included in or omitted from them which renders the process legally unfair, the courts will be in a position to say so.

The initial question, however, remains to be answered: does the present system at Harmondsworth, considered in the round and at the point of entry, carry an unacceptable risk of unfairness to asylum-seekers?

In our judgment Collins J was right to conclude that it did not. He held:

I recognise that there are real concerns by those who work under it that the scheme has the potential for unfairness. I am satisfied that anything quicker would be impossible to justify but I am equally satisfied on the material I have had put before me that the present system is not unlawful. Its flexibility is said to enable it to cater for individual difficulties. It is important that the need to be flexible is recognised and acted upon by those who are responsible for dealing with applicants under the scheme. The figures put before me do not persuade me that it is not happening.

Our reason for reaching the same conclusion is, however, slightly different. We accept Mr Fordham's submission that there is a tension between flexibility, itself an essential part of the system, and an unwritten, imprecise but underlying policy of not compromising the system's integrity. If this underlying policy were allowed to subvert proper individual requirements of more time, it would compromise the system because it would create unfairness. An individual case in which it could be shown to have operated to an applicant's detriment would, subject to questions of mootness and standing, be justiciable.

But provided that it is operated in a way that recognises the variety of circumstances in which fairness will require an enlargement of the standard timetable - that is to say lawfully operated - the Harmondsworth system itself is not inherently unfair. A written flexibility policy to which officials and representatives alike can work will afford a necessary assurance that the three-day timetable is in truth a guide and not a straitjacket.

Mr Fordham has invited us, if we reach this stage, to find against the Home Secreary on essentially the same footing as this court did (upholding Collins J) in R (Q) v Home Secretary [2003] EWCA Civ 364, [2004] QB 36. There the essential finding was that the procedures applied to each of the applicants had been vitiated by unfairness to him or her. There is, however, a difference between that case and this. There, the deficiencies in due process identified by the court and summarised at §119(xii) in its judgment had resulted in adverse decisions which fell to be quashed in consequence. Here, what has been identified is a gateway risk of injustice, in the nature of things not case-specific but caused by potential rigidity in a system which requires genuine flexibility in its timetable.

We have recognised this risk and indicated what in our view needs to be done to obviate it. But, like Collins J, we do not consider that the system itself is inherently unfair and therefore unlawful. On the contrary, so long as it operates flexibly - as the Home Office accepts it should – the system can operate without an unacceptable risk of unfairness. Although therefore a material part of the RLC’s concern needs to be addressed, Collins J was right to refuse relief, and the appeal consequently fails.