R (Refugee Legal Centre) v Secretary of State for the Home Department

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 evidence before me shows that since the scheme commenced on 10 April 2003 (when initially 90 and since October 2003 120 beds were allocated to those to be dealt with under it) by 3 January 2004, of 529 decisions taken, 528 had been refusals and of 418 appeals determined by adjudicators, 412 had been dismissed. 172 of 182 applications for leave to appeal to the Immigration Appeal Tribunal had been refused. This, it is said, shows that the scheme is working well as intended since it was correctly identifying those claims which were indeed likely to be straightforward and in which removal should take place as soon as possible. As I have said, if claims are considered to be too complex or for other, for example medical, reasons unsuitable for Harmondsworth, they can be taken out of the fast track. Equally, an adjudicator on appeal is entitled to direct that the appeal is removed from the fast track and dealt with under the normal procedures.

The claim asserts that this is too fast and does not enable an applicant to have a fair chance of putting forward his claim properly. The legal representatives are often unable to take full instructions in the time available and feel that the applicant is placed under too great pressure in having to face an asylum interview the same day as he may be meeting his legal representative for the first time and that when tired and apprehensive following a long journey, perhaps in considerable discomfort and with the fear that he may not reach his destination or if he does, he may be summarily refused. The claimant has acted throughout in a thoroughly responsible fashion. An advice, which largely foreshadows the arguments put forward in this claim, was obtained from Mr. Fordham in July 2003. This was provided to the Home Office so that consideration could be given to changes to accommodate the concerns raised. I am told that the process has indeed been kept under constant review and Mr. Martin, the Deputy Director of IND who is responsible for the fast track scheme, tells me that he would seek to have any part of the process which was in his view unfair or not working effectively amended.

On 20 August 2003 the representatives of the claimant had a meeting with Home Office officials. It was said that the initial view on behalf of the Home Office was that the process was fair provided that the applicant was fit and well and so able to proceed. The evaluation of the pilot would not take place as a public exercise: it was purely internal, but the representations made would be taken into account. The claimant’s case was and is very modest. It recognises that it is entirely reasonable and proper to seek to deal with claims as speedily as possible and that claims from the so-called safe countries can often but not by all means always be regarded as comparatively straightforward. But it is essential that applicants are given a proper opportunity to make their claims and to explain why they are seeking asylum. It must never be assumed that an applicant has no genuine claim; rather, each must be approached with an open mind and recognition that the claim may be genuine. It is said that, having regard to the absence of a proper opportunity to make representations after the interview, the unfairness can be alleviated by allowing a full day for the taking of instructions. The interview should take place on the next day and the decision made on the following day. There would thus be sufficient time to take proper instructions free from the pressure of an interview the same day and there would be time to make representations following the interview. The decision would be made on the fourth rather than the third day, so that the extension of time would be very small, amounting to one day only. While this may seem reasonable, I must bear in mind that there is a considerable cost involved in losing even one day and that fewer claims could be processed. And the reasonableness of the suggested modification is not the point. If the process is not unfair and so is lawful, there is no obligation on the defendant to provide one which is regarded as more satisfactory.

On 5 September 2003 the Home Office responded to the claimant’s concerns which had been raised in counsel’s advice and at the meeting. The key paragraph of the letter reads as follows: -

“The Home Office would make the important general point that the Harmondsworth Process is flexible and timescales are indicative only. IND ensures in practice that they are applied flexibly to ensure fairness. The precise timetable on which an individual case goes through the system can vary from the indicative timescale for a variety of reasons. This goes back to the fundamental point that the timescales are not prescribed, but are indicative or aspirational. When we met, we invited you to give specific examples of individual cases where the applicant had been treated unfairly, and you were unable to do so. I appreciate that the Refugee Legal Centre has had only very limited involvement in the Harmondsworth Process, but it is nevertheless important that the process is assessed on the basis of how it operates in practice rather than on the basis of a hypothetical analysis which takes no account of the flexibility in the system. We accept that the Fast Track process is not suitable for all cases which are initially put into it. To date 18 applicants have been taken out of the Fast Track and put into the normal process. IND has taken out 8 of these cases, for a number of reasons such as referral to the Medical Foundation and because of age disputes. The other 10 cases have been put into the normal track by I.A.A.”.

It is said that, provided the applicant is fit and well, there is no unfairness in having the formal interview on the same day as instructions are take. So far as further representations after the interview are concerned, it is said:-

“As I have said, the 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. In those cases where the representative can specify the information they are seeking and how it will affect the claim, careful consideration will be given a period of time for submission of that information”.

The claimant wrote on 15 September rejecting this and stating that judicial review would be brought, the issue being that the basic timetable involved inherent unfairness. The claimant also requested and in due course received an assurance that the defendant would not seek costs if he succeeded in resisting the claim for judicial review. Both counsel and the Public Law Project are acting pro bono and I accept that the issue is one of general importance.

Although not disclosed by the defendants, there is before me correspondence between the Legal Services Commission (LSC), the Law Society and the Lord Chancellor’s Department about provision for legal representation at Harmondsworth. This includes a questionnaire sent to all solicitors who were involved in the process which was copied to the Home Office. On 15 May 2003, the LSC wrote to the Law Society indicating that it met regularly with the Home Office and was informed of any difficulties with duty solicitors. Further, the solicitors were encouraged to contact the LSC with any issues they might have. It is said: -

“No firm has raised any concerns over the timescales involved and we understand that the I.A.A. has only had two requests for adjournments – and neither of those was from contracted suppliers”.

Meetings were planned in June when there would be an “opportunity for suppliers to raise concerns about the process and timescales with the Home Office”. A meeting was held on 16 June which included representatives from ILPA, LAPG, the Medical Foundation and participating solicitors. It is clear from the notes before me that no complaint was raised about the timescales as such and that the issues identified related to specific problems that had arisen from time to time. There were concerns about insufficient time being given for interviewing clients, but this was because interview rooms were only being made available for 2 hours. This restriction has been removed. In August, responses to a questionnaire which included the question: -

“Overall are you happy with operation of the fast track? If no, please give reason”

showed that 17 said no and 5 said yes (or not applicable). The reasons for dissatisfaction varied. 12 said the timescale was too short and led to a real difficulty in putting forward a proper case on behalf of the client. There had been a meeting with the LSC on 21 July 2003 in which it was suggested that there should be a day between arrival and interview and a day after interview to enable proper instructions to be taken and to give an opportunity to make further representations after considering the responses made by the client in the course of the interview. There was also a request for extra time to be made available (3 days was asked for) in the appeal process to allow work to be done to obtain necessary evidence or to research specific issues. Thus the general complaints raised by the claimant have been echoed by many representatives who have been involved in the process, although there have been only two specific complaints of unfairness in individual cases. A statement from Mr. Rick Scannell of ILPA has been put before me. This again echoes the concerns which are raised by the claimant.

Mr. Fordham has summarised what he suggests is experienced by a typical asylum seeker who passes through the fast track process. It is convenient to set his summary out in full: -

“DAY 1

You are referred to Harmondsworth, usually from the airport (eg Heathrow, Gatwick or Stansted), or alternatively from an Asylum Screening Unit or Local Enforcement Office. You have travelled to the United Kingdom from one of more than 60 “Oakington list” countries (from “Afghanistan” to “Zambia”) and have claimed asylum. A “screening officer” at the airport or ASU/LEO, asks you some questions so as to be able to consider your nationality, age, sex, ethnicity, religion and any special medical or “additional” matters. In this “initial screening” process, the officer will have made a call to a person at Oakington. You are referred to Harmondsworth because, after this “initial screening”, the Home Office think your claim is likely to be “relatively straightforward and capable of being decided quickly”. You wait while an agency called DEPMU (Detention, Escorting and Population management Unit) arranges for a vehicle to drive you to Harmondsworth. Meanwhile, your A1 has been set for 2pm the following day. A duty solicitor has been phoned and told this. You arrive at Harmondsworth. It is a detention centre. You are given an “induction interview”. It tells you you are going to be interviewed tomorrow about your asylum claim, in your own language, and that you can have a state-funded lawyer to help you. Information about your family, medical and religious needs are sough and written down. You go to bed. Next day, you will face a jam-packed day.

DAY 2

Your first full day at the detention centre. You meet the duty solicitor, a stranger who is to advise and represent you. You have been allocated three hours of time in an interview room. During that time your representative has to advise you, listen to you ask you questions and help you to prepare for the asylum-interview with the immigration officer, following which the officer will make the Administrative Court in your case. Everything has to said and explained through an interpreter. It is all done against the clock. And it is all done knowing that you need to be in a calm and rested frame of mind for your 2pm AI. After lunch, it is time for your asylum-interview with the immigration officer. It lasts between 1 hour 45 minutes and 2 hours 45 minutes, including breaks. At the end of the interview, you and your representative are given a copy of the interview notes and told that the Administrative Court will be made next day. The process being not designed to include scope for further representations, if you or your representative want to consider putting in any further representations then (typically) you will have to work together through the evening (to 9pm) for that purpose.

DAY 3

The decision is faxed to your representative. Asylum is refused”.

The process is compared with Oakington, which, it is said, provides 8 days for what Harmondsworth requires to be done in 3. Attention is drawn to concerns expressed by 5 participant firms: -

“The general opinion was that the timescales currently operating are insufficient to properly prepare a client’s case … At present asylum seekers arrive at Harmondsworth at any time on Day 1 and are then expected to instruct a duty solicitor and have a substantive asylum interview on Day 2. In many cases the group reported that clients arrive late on Day 1 and are tired and distressed after a long journey and insufficient rest and are in no fit state to be advised by a solicitor. In practice it is currently not possible for solicitors to see their clients except immediately before the asylum interview and so the asylum seeker is then subjected to a very long and stressful day. One solicitor reported that she had seen clients who were so tired and stressed by the time of the interview that they neglected to give important facts to the interviewing officer, thus not presenting their case in the best light”.

I am bound to say I find this somewhat surprising, particularly the last sentence. The defendant has emphasised the flexibility of the system and has made the point that the applicant is always asked whether he is fit and well. If the representative is concerned that his or her client is not fit to be interviewed, that should be made clear and a request for an adjournment should follow. If it is refused, that will be a strong point to rely on in an appeal and in a blatant case may even justify a claim for judicial review. Certainly, a specific complaint should be made.

Usually unfairness as a ground for judicial review will arise in particular cases. This led the defendant to suggest in Summary Grounds of Defence which he served that ‘procedural fairness falls to be assessed in the light of the specific facts and circumstances of the individual case’ in reliance on a dictum of Lord Mustill in R v Secretary of State for the Home Department ex p. Doody [1994] 1 A.C. 531 at p. 580. Before me, Miss Giovanetti correctly accepted that it could properly be argued that a system was unfair and, if that was established, the claim would succeed whether or not a particular individual could be shown to have suffered as a result. She accepts, too, that a court can be required to decide whether a system is unfair but, in so doing, she submits that the court must bear in mind that its function is one of review, that the test is whether the procedure is lawful and that the standard applicable is that which relates to administrative rather than judicial proceedings. While I accept that those qualifications must be borne in mind, in reality the court will act if it regards the process as unfair and will not limit itself to considering whether the decision maker could reasonably have believed that what was being done was fair. In general, fairness either exists or it does not, having regard to the context in which the issue is raised. If a system is not fair, a belief however reasonable that it is cannot mean that the court must uphold it.

In deciding on the fairness of the system, Mr. Fordham submits that the typical applicant must be considered. He has described what he submits is the typical applicant in the summary which I have already cited. Miss Giovannetti submits that the proper approach is to consider the most straightforward case and rely on the flexibility of the system to deal with any problems in other cases. Mr. Fordham submits, in my view correctly, that the relevant question to be asked is whether the system devised is one which by its nature and design is capable of being a fair process. Normally, this will be tested by seeing how it works in practice, although it is certainly possible to imagine circumstances in which it can properly be said that a system is not capable of being fair without it being put into practice at all. But here it has been put into practice and we know that a large number of claims have been processed. If the tightness of the timescale led any representative to believe that his or her client had been unable to put forward adequately the case he wished to advance and so the system was not fair to him, the representative would surely have said so. I cannot believe that any competent representative would have let his or her client be treated unfairly and so prejudiced without saying anything. In those circumstances, it is difficult to see how it can be said that the system is not capable of being fair despite its shortcomings. Indeed, I can go further and be satisfied that the lack of individual complaints shows that the system is not prejudicing the vast majority of those with whom it is dealing. Accordingly, I do not think the approach suggested by either counsel is particularly helpful or indeed necessary.

Much has been made by Mr. Fordham of the Oakington timescale and the alleged lack of any reason why the Harmondsworth timetable should be shorter. But like is not being compared with like. The majority of claims going through Oakington will, if refused, result in a certification which precludes a right of appeal. It is therefore all the more important that the decision reached is correct since it cannot be revisited on its facts. A refusal in the Harmondsworth scheme will always carry a right of appeal. Thus it is wrong to focus on the first stage only; the whole system including appeals must be taken into account. Furthermore, Harmondsworth provides a fully qualified legal adviser at all stages. This does not mean that an unfair system in relation to the decision of the Home Office can automatically be cured by a right of appeal. It is, however, a relevant consideration in deciding on the overall fairness of the system since the purpose of a full appeal such as is provided before an adjudicator is to deal with errors which have produced a wrong initial decision however those errors have arisen. And it also means that dicta emphasising the importance of a just and fair determination of asylum claims must be considered in the context of the scheme as a whole. In addition, the observations in R(Q) v Secretary of State for the Home Department [2004] QB 36 at p.77 (Paragraph 91), approving what I had said at first instance, that a readiness to reconsider decisions is no substitute for proper and fair primary decision making has a very limited application where a full appeal is available.

Because of the alleged analogy with Oakington, I should refer to some passages in R(L) v Secretary of State for the Home Department [2003] 1 W.L.R. 1230, upon which some reliance was placed by Mr. Fordham. In that case, the Court of Appeal emphasised the need for a fair opportunity to be given to applicants to present their claims properly. But Oakington was by the time L was decided only taking cases where the applicant came from a country within s.115(7) of the 2002 Act and so it was believed that the claim was likely to be clearly unfounded so that a certificate could be issued denying any right of appeal. Thus in paragraph 38 on p.1242 the Court said this: -

“It seems to us that the reason for currently restricting those sent to Oakington to applicants from s.115(7) states, is that they are likely to contain a high proportion whose applications will speedily be demonstrated to be manifestly unsound. If the new procedure is not to result in injustice, such applicants must be given a fair opportunity to demonstrate, at the least, that they have, or may have, an arguable case”.

Since an adverse decision would be unappealable, it was obviously important that sufficient time was given to ensure that there could generally be no undue time pressure and it had to be recognised that the opportunity to make further representations after interview but before any decision was reached was necessary. There was no appeal in which such matters would be raised. Accordingly, as I have said, I do not think that comparison with the Oakington timescales is particularly helpful.

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.

It follows that this claim must be dismissed.