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

JurisdictionEngland & Wales
JudgeLord Justice Sedley
Judgment Date12 November 2004
Neutral Citation[2004] EWCA Civ 1481
Docket NumberCase No: C1/2004/0939
CourtCourt of Appeal (Civil Division)
Date12 November 2004
Between:
The Queen on The Application of The Refugee Legal Centre
Appellant/Claimant
and
Secretary of State for The Home Department
Respondent/Defendant

[2004] EWCA Civ 1481

Before:

Lord Justice Chadwick

Lord Justice Sedley and

Lord Justice Dyson

Case No: C1/2004/0939

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

MR JUSTICE COLLINS

Royal Courts of Justice

Strand, London, WC2A 2LL

Michael Fordham and David Pievsky (instructed by Public Law Project) for the Appellant/Claimant

Robin Tam (instructed by Treasury Solicitor) for the Respondent/Defendant

Lord Justice Sedley
1

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 system

2

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

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 [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.

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 1-34; and 2-34; 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.

3

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

4

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.

5

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.

The question

6

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.

7

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 standard

8

The choice...

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