Response to Tribunal consultation says 25 or 28 day timescale is insufficient for representatives
The Law Society today published its response to the Tribunal Procedure Committee's (TPC) consultation on a new process to expedite appeals by immigration detainees. The 7-page response can be downloaded here.
The Government suspended the previous detained fast track asylum process in July 2015 after a number of court rulings found the rules were unlawful, in particular The Lord Chancellor v Detention Action.
Last July, the Ministry of Justice announced that it had drawn up a new fast-track system to speed up immigration and asylum appeals for those in detention. It proposed that that the time between the Home Office's decision and determination of the appeal by the First-tier Tribunal should be set at between 25 and 28 working days.
The independent TPC then held a consultation this year from 12 July to 4 October on whether and how the proposals should be implemented.
In its response to the TPC, the Law Society says it still believes that there are serious and fundamental concerns about the lawfulness of fast track appeal procedures for detained appellants.
"Our consistent view has been that such procedures present grave obstacles to access to justice and are inherently unsuitable for immigration detainees. The passage of time since the decisions in the case of Lord Chancellor v Detention Action has not reduced the impact of the judgments on the feasibility of fast track appeal procedures to deliver both fairness and access to justice for appellants, while meeting the Home Office's requirement for speed in pursuit of targets," the Law Society stated.
Notably, the response continues: "At the outset we reject the suggestion that fairness and access to justice can be achieved by a 25-day timetable beginning, just as the Court of Appeal did, or by the addition of a further three days. We are unaware of any research or other evidential justification that supports the view that this timescale will allow appellants sufficient time to properly prepare cases."
In rejecting the Government's proposed timescale, the Law Society explained:
"(a) The proposed timetable of 25 or 28 days provides insufficient time for representatives to carry out the wide range of tasks necessary to provide effective representation at an asylum appeal hearing. This includes obtaining legal aid, the instruction of experts, adequate time with detainees to take instructions and prepare statements and pursuing adequate disclosure from the Home Office in order to prepare an appeal.
"(b) The Home Office's previously proposed forms of case management review and time limits on judicial discretion within the fast track rules are insufficient as safeguards, particularly where appellants are unrepresented and/or vulnerable
"(c) The TPC has rightly identified that timescales can be affected in a number of ways without the requirement for specific rules 'including by resourcing decisions made by HMCTS and judicial decisions'
"(d) Screening out vulnerable appellants continues to be extremely poor despite strong criticism of the 'adults at risk' policy."
The response also highlights the continued "precarious" position of legal aid and it notes that while Exceptional Case Funding is available for some unrepresented appellants, the timescales for determination of applications are between 10 days for urgent cases and 25 days for other cases. The new fast track proposals would therefore mean, the Law Society says, that many appellants will go either wholly unrepresented or parts of their appeals will not be prepared at all or properly due to lack of funding, thereby fundamentally undermining their ability to properly present their appeals or do so at all.
"It would also put representatives in an invidious position of not being able to properly discharge their professional duties towards their client due to lack of funding and representatives' inability in the current financial climate to carry out work on a 'pro-bono' basis. The provision of, and accessibility to legal representation is a crucial element in assessing fairness within an expedited appeal procedure," the response continued.
The Law Society undertook a review of detention cases held by a reputable detention advice contract provider in order to inform its response to the consultation, leading it to conclude: "Our findings and conclusions leave us with no doubt that a fast track appeal timetable remains inherently unrealistic and carries with it a real risk of unfairness in too many cases thereby undermining the rule of law. Our review of the cases also serves to confirm that prescriptive timetables for classes of cases are unworkable because each case has its own unique factual and legal matrix that require conscientious representatives to undertake multifarious and time-consuming tasks in order to properly prepare for an appeal. These vital tasks carried out by representatives are in many cases determinative of a successful appeal outcome and cannot be carried out properly or at all under the severely restricted timetable proposed by the Home Office."
Christina Blacklaws, the president of the Law Society, told The Times: "If people in immigration detention are forced to make appeals through a fast-track system there is a real risk of unjust decisions leading to people being removed from the UK unlawfully.
"Asylum and immigration claims may be complex and gathering evidence can take time. If the claimant is detained there are also significant barriers to consulting a solicitor. Accelerating the appeals process when there are so many unreliable initial decisions by the Home Office risks riding roughshod over people's rights."