COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE COLLINS
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
LORD JUSTICE DYSON
| THE QUEEN on the application of the REFUGEE LEGAL CENTRE
|- and -
|SECRETARY of STATE for the HOME DEPARTMENT
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Robin Tam (instructed by Treasury Solicitor) for the Respondent/Defendant
Crown Copyright ©
Lord Justice Sedley :
1. 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  1 WLR 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.
2. 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.
3. 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.
4. 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 Harmondsworth fast track
Is the system fair?
"All asylum seekers are vulnerable. They may have been tortured, maltreated, abandoned. Many will feel isolated… Many will miss their families…, such difficulties being exacerbated by the conditions in which they are living and the uncertainty surrounding their status. The fear of detention and the fear of removal will add to these traumas." (Ch.5).
"Your client should understand that the responsibility for presenting the claim to IND is shared between the two of you. Advise your client about the need for prompt and full disclosure and the very strict time limits that govern asylum applications, even though this may cause your client additional trauma and distress.
Stress both the confidentiality of the application and the need to make a prompt disclosure of fact. Your client may find these twin propositions to be contradictory, particularly if he is concerned about revealing sensitive political or personal information. It is essential at this stage that your client understands that withholding information may seriously damage credibility." (Ch.3).
"You should examine … the interviewing officer's notes of the interview and any comments on the conduct of the interview with your client as soon as possible in order to decide:
- 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).
16. 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.