The Tribunal Procedural Committee yesterday responded to the consultation on whether appeals by immigration detainees should be expedited in order to replace the Detained Fast Track rules, which were found to be unlawful and subsequently suspended in 2015.
The Tribunal Procedural Committee concludes that expedited appeals should not be reintroduced, saying: “Having considered carefully the responses to the consultation and government proposals, the Tribunal Procedure Committee has decided not to introduce specific rules in relation to cases where an appellant is detained.”
The Detention Forum welcomed the news, while Detention Actioncalled it the “[f]inal nail in the coffin for gov’s fast track policy that saw thousands detained & deported without ever having a proper hearing of their case.”
In its reply to the consultation, the Tribunal Procedural Committee (TPC) further explained its conclusions as follows:
“The TPC agrees with the Government’s policy objective to minimise the time individuals spend in detention. It is clear that nobody should be detained longer than necessary. It follows that appeals involving detained appellants should be resolved as quickly as possible, consistent with fairness, and that the procedural rules should enable this. These positions were also supported by those who responded to the consultation.
“In order to ensure that such a system would deal with cases fairly, it would need to include rigorous procedural safeguards to ensure that unsuitable cases were not included within the fast track system. The importance of such safeguards must not be underestimated. As the replies to the consultation indicated, the cases involved are of the greatest importance to the individuals concerned and often of some difficulty or complexity. The TPC has no doubt that many appeals involving detained appellants would not be suitable for resolution within 28 working days and would therefore need to be removed from any fast track system. This flows inevitably from the intention of initially applying any specific rules to all appeals involving detained appellants and from the practical challenges identified in the replies to the consultation summarised above.
“The TPC did not accept the argument, put forward in a number of the replies to the consultation, that such safeguards were impossible to create. The safeguards in place under the previous Fast Track Rules were found not to be effective. But these severely limited the tribunal’s powers to re-move cases from the system and the rules were phrased in such a way that they created a default expectation that the case would remain in the Detained Fast Track.
“The TPC considered that, if new fast track rules were to be introduced, there would need to be an early oral case management hearing for all cases where an appellant was in immigration detention. A key function of that case management hearings would be to decide whether the appeal should be heard under the Principal Rules or any fast track rules. The TPC concluded that such a system was capable of offering an adequate safeguard, by ensuring that unsuitable cases were not placed within any fast track system.
“However, such hearings would absorb a substantial amount of judicial and administrative resource, which would then not be available to be used to resolve cases. It would delay the hearing of cases that were taken out of any fast track process, since any ‘fast track’ hearing that had been listed would need to be cancelled and a new hearing listed. There was a real prospect that a substantial proportion of detained cases that entered a ‘detained fast track’ would need to be removed from the system as unsuitable. There was also the danger of satellite litigation being created around the tribunal’s case management decisions, causing further delay.
“The need for robust safeguards also means that specific rules would not lead to any greater certainty in relation to how long an appeal would take to conclude. An inevitable consequence of such safe-guards would be that many cases would be dealt with outside the fast track timescales, since the purpose of such safeguards would be to identify unsuitable cases and ensure they were dealt with differently. Specific rules would therefore create no greater certainty than the existing Principal Rules.
“Both of these points must also be seen in the context of the current system of accelerating cases involving detained appellants under DIA. This development, achieved over the period since the Government launched its consultation, means that cases are already being resolved quickly. It should be noted that the average of 11 weeks it takes to resolve an appeal with a detained appellant is based on both those cases could be dealt with within an expedited process and those which would be excluded as unsuitable at the case management stage.
“The speed at which these cases are being dealt with both limits the scope for further expedition and means that introducing a new case management stage is likely to delay the resolution of appeals in many cases.
“All of this, the TPC concluded, meant that a set of specific rules would not lead to the results sought by the Government. If a set of rules were devised so as to operate fairly, they would not lead to the increased speed and certainty desired.”