Detained, disbelieved, dehumanised: fighting for asylum seekers

This story begins with a happy ending.

I was at my desk on the 2nd of July 2015, a day like any other, when I received an email. James Brokenshire, the minister for immigration, had made a statement to the House of Commons saying that the Detained Fast Track system had been suspended. I was overwhelmed with happiness, and disbelief; more disbelief, and still more happiness. I felt like rushing outside into the streets, throwing a party, telling complete strangers the news as if their world would instantly change, like mine. I had to repeat it to myself to believe it was true. Over. The Detained Fast Track is over.

I thought about what the Fast Track had done to my clients.

To Sunil, Patience, Bernard, Jacques, Gabriel, Mohamed, Sulayman, Grace and Bella to name a few. They had all been placed on the fast track while applying for asylum in the UK. The Detained Fast Track, or DFT, was a system for making quick decisions on asylum applications. A typical asylum application outside of the fast track process might take six months, whereas a fast track case was supposed to be completed within two weeks or 22 days if an appeal was made. The criteria for choosing which cases to fast track was dependent on the complexity of the cases; if a case was deemed clear cut then it would be fast tracked. People applying for asylum under the fast track system would be detained for the duration at an immigration removal centre, so that they could be quickly deported if the claim was unsuccessful. My role was to challenge the detention of my clients throughout the process. A typical claim could drag on for several weeks or even months and in that time I got to know them well.

One of the worst things about detention for my clients was not knowing when they would leave. No one tells them because no one knows: there is no time limit and there is nothing they can do about it. It could be weeks or months, some people have even been detained for years. As they waited, it felt as though there were too many hours in every day, and little to make the time pass, so they would spend their days revisiting the same thoughts of despair. They were haunted by fear and a feeling of helplessness, locked in their minds, until slowly reason started to slip away. One client says:

You are caged in by barbed wire above the high perimeter walls, metal bars on the windows, and everywhere locked doors. You are watched by cameras and counted by roll calls, given instructions and orders, and guarded so closely that if you have to go to hospital for an appointment you are handcuffed, wrist to wrist, to a guard, from the moment you leave the centre in a van until you get back, even when you are discussing your health with the doctor, even when you need to use the toilet. You lose your dignity as well as your hope.

The system destroyed all agency and left my clients feeling helpless. They couldn’t understand why the Home Office had detained them, why they were disbelieved and why so few people cared. The effects of this bureaucratic coldness were harsh. It became impossible to sleep, they experienced nightmares, headaches, palpitations, cold sweats, anxiety. The immigration removal centres have on site healthcare and the nurses sometimes prescribed tranquillizers, sleeping tablets, anti-depressants, or maybe even anti-psychotics. They would tell my clients to come back each day to collect the medication because they feared that if a detainee was given a full course of medication at once they might attempt suicide.

The government introduced the fast track system in 2000 to deal with record numbers of asylum applications, which peaked at around 84,000 in 2002.

Compare that to 2014, where just under 25,000 people applied for asylum. Despite the fall in asylum applications the system has steadily expanded; by 2013 one in five asylum seekers was being ‘processed’ in DFT. The Home Office refused 99% of these claims, compared to around 59% of non-fast track applications.

For my clients, this was another difficulty with Fast Track, knowing that their asylum case was bound to be refused. They heard the horror stories from other people who had been through the system already and it destroyed any hope of success. While they waited in detention, they watched other detainees disappear without warning, which forced them to confront their own vulnerability. ‘When will the guards come for me?’ It might be in the middle of the night. How could they stop it from happening, stop the guards from putting them onto that flight?

One of the worst things about detention for my clients was not knowing when they would leave

Asylum seekers could appeal against a Home Office decision to an independent Tribunal, but their rate of success for appeals was low. A study by Detention Action found that there was a refusal rate of around 93% on the fast track system at Harmondsworth Immigration Removal Centre, compared to 72% for ordinary asylum appeals. The vast majority of cases were refused because the accelerated timescales meant their claims weren’t being looked at fairly.

In theory, the fast track system wasn’t designed for asylum seekers whose cases were complex or for anyone considered ‘vulnerable’ or ‘unsuitable for detention’ including, human trafficking victims, people with independent evidence that they had been tortured, disabled people, and people with severe mental and physical health problems. But in practice, the Home Office deemed most asylum claims straightforward, and vulnerable people were not identified and so ended up in the Fast Track too.

Another problem with the system was the cost. It is actually more expensive to keep people in detention while their asylum applications are processed than house them in the community. It costs around £5,500 to keep one person in a high security detention centre for one month – well over five times the cost of providing them basic accommodation and support in the community for the same period of time. Home Office mistakes and inefficiencies pushed up costs even more. Detention Action estimate that the cost of delays while asylum seekers were detained under DFT was more than £2m in 2010 alone.

But it was not the cost that finally bought the system down. In his statement in July, James Brokenshire said that the ‘fast track policy’ had been suspended because of concerns about ‘the level of risk of unfairness to certain vulnerable applicants’. There was only a passing mention of the fact that the system had come ‘under significant legal challenge’. Unperturbed, impersonal, opaque: this was the language of government. The minister downplayed the extent of the opposition to the Fast Track system, failed to take responsibility for Home Office failings, and ignored the impact the system had had on the lives of the thousands of people who had been through it.

It made me furious. The truth is that the systematic unfairness of the Fast Track system has meant that countless asylum seekers have had their cases unjustly refused and their lives changed forever by the experience of being locked up like criminals. The legal challenge that led to the government’s announcement was a long, complex and fiercely contested fight. It was at heart a battle about rights, about what is just and what is fair in the treatment of people who have fled persecution and sought our protection. This is the story of that fight.

For years, lawyers like me have fought against the Detained Fast Track, trying to rescue our clients from its clutches.

I was often successful in getting my clients released, but however good the result I could not rejoice for long. My client was out, but the system itself continued on, undisturbed, and I knew that soon enough I would be fighting exactly the same battles against the Home Office’s caseworkers again, feeling like I was banging my head against a wall. We did everything we could for our individual clients, but had neither the time, money or sheer audacity to try to bring down the system as a whole. There had been some attempts to challenge the early use of Detained Fast Track with the result being that the Home Office was ordered to out in place safeguards to ensure that the fast track process was lawful and treated each case on its own merits. However, despite these guidelines the process wasn’t fair and vulnerable people placed for extended periods in detention while the Home Office attempted to process their complex cases through DFT.

We had neither the time nor money to try to bring down the system as a whole

That all changed in 2013 when the charity Detention Action, represented by Migrants’ Law Project, launched their first legal challenge. Their case was deceptively simple: the way the Fast Track worked was so unfair as to be unlawful and a breach of the human rights of the people subjected to it. Thanks to the extensive evidence that Detention Action had gathered, the High Court Judge Mr Justice Ouseley dissected the system and made several trenchant criticisms of its inner workings. The initial interview stage of DFT, which was used by the Home Office to decide whether to process a case in Fast Track, was not fit for purpose because asylum seekers weren’t asked questions that would establish whether their case was simple or straightforward and whether there was any reason they should not be detained. In addition, Mr Justice Ouseley questioned the efficiency of the safeguards in place to remove victims of torture and other vulnerable people from the Fast Track process. For example, if there were concerns that a person may have been tortured, a doctor based at the detention centre would write a report with a brief description of the torture and a diagram illustrating any scars still visible on their bodies. This was sent to the Home Office who then had to review whether the case should remain in the Fast Track. Their answer was always that it should. However, two specialist organisations working with torture victims – Freedom From Torture and the Helen Bamber Foundation – had concerns that many asylum seekers in Fast Track were victims of torture and offered those applicants clinical assessment appointments. The Home Office itself recognised the expertise of these organisations and accepted that people with an appointment for an assessment should be released from Fast Track. This showed how ineffective the Home Office’s own system for identifying people who may have been victims of torture was. It also meant that the only chance a victim of torture had of being identified as such was through a referral to one of these charities, who themselves were becoming increasingly unable to deal with the numbers.

Mr Justice Ouseley made these and other criticisms of the way the Fast Track worked, but stopped short of declaring the entire Fast Track system unlawful. But all was not lost. The judge said:

I am satisfied that the shortcomings at various stages require the early instruction of lawyers to advise and prepare the claim, and to seek referrals for those who may need them, with sufficient times before the substantive interview. This is the crucial failing in the process as operated. I have concluded that it is sufficiently significant that the DFT as operated carries with it too high a risk of unfair determinations for those who may be vulnerable applicants.

In short, the presence of a lawyer was a crucial safeguard capable of protecting an asylum seeker from the other failings in the system. But if a lawyer is allocated 24 hours before the asylum interview, with a decision on the claim to follow just 24 hours after that, there simply isn’t enough time for a lawyer to do the job properly.

The judgement was a vindication of all the long, adrenaline and stress-fuelled days I’d spent working on Fast Track cases, but it was not the victory that we had all hoped for. It seemed the Court was reluctant to tread on the government’s toes and the final judgement refused to order that the Fast Track be suspended, or even that the Home Office take specific action to make up for the ‘unfairness’ of its actions. Meanwhile, the Home Office response was to allocate lawyers four working days before an asylum seeker’s interview. Everything continued as normal.

Following the High Court judgement in June 2014, Detention Action sought a suspension of the Fast Track system in light of the judge’s comments on the unfairness of the system.

The Court of Appeal rejected the application.

Later that year, Detention Action launched a new line of attack focusing on the appeals stage of the process. The new case argued that it was unlawful for the Home Office to keep asylum seekers in detention while they appealed a refusal decision. They won. But again, the victory was not clear-cut. The Court of Appeal said that detaining asylum seekers during the appeal stage of the Fast Track was unlawful, but only because the policy wasn’t clear and transparent enough. As a matter of principle, they didn’t actually have a problem with people being detained in those circumstances, which left open the possibility that as long as the Home Office made the policy clear it could continue operating.

I read the long judgment one lunch hour. It scrutinised the statutory framework giving the Home Office the power to detain and the requirements needed for a policy to be lawful. I was soon lost in bureaucratic prose; it was so far removed from the lives of my clients and their experience of detention. I struggled to bridge that gap. How could detaining a person who is seeking asylum ever be justified? I suppose I craved a simpler victory, something concrete, conclusive. Something dealing with the black and white of right and wrong; but I was learning that when it comes to litigation, the emotions and experiences of the people it concerns have a strange way of getting forgotten. What is right is often tempered and confused by the abstractions and limitations of legal argument.

I craved a simpler victory. How could detaining a person who is seeking asylum ever be justified?

Despite my ambivalence, the result was incredibly useful. It provided anyone who had been detained under this unlawful policy a clear basis on which to sue the Home Office. I was helping many of my clients to do just that. Claims against the Home Office for unlawful detention are something of a growth area of law, but you won’t hear much about it unless you work in the field. These cases rarely get to court, because the Home Office is so keen to settle them. They will agree to pay a hefty sum of money to my client to compensate him or her for having been locked up for months, and that will be the end of it. No bad publicity. No scrutiny of the monetary cost of detention; the tens of thousands of pounds paid in damages money, the legal cost, the operational costs of detention centres. It makes the cynic in me think that the Home Office is happy to pay for acting unlawfully, as long as it means that they continue to appear ‘tough on immigrants’. At times I wonder who the winner in these cases really is. Will that money ever make up for what my clients have lost? Will it change the fact that every time Bernard hears the rattle of a large bunch of keys he gets cold sweats, an unwanted quickening in his heartbeat, a feeling of emptiness and panic? ‘I need to get out,’ is all he can think. Until he realizes he is out, on the street on his way back to his flat. But for that moment, which felt like so much longer to him, he was back there in Harmondsworth immigration removal centre, with the guards locking and unlocking and relocking doors behind him and in front of him, with the noisy Heathrow flight path overhead a constant reminder of how close he was to losing everything.

Detention Action’s fight continued and on 12 June 2015 they won another appeal.

This judgment was a joy to read: full of caustic yet eloquent comments criticising the Home Office, which I could later deploy like arrows to support of my cases. The High Court declared that the entire Fast Track appeal system was structurally unfair because it didn’t allow asylum seekers enough time to prepare their case. ‘It looks uncomfortably akin…. to sacrificing fairness at the altar of speed and convenience,’ the Judge said. The Home Office appealed the judgment immediately. But just two weeks later, on 26 June 2015, the Court of Appeal endorsed the High Court’s decision, and in effect put an end to the appeal part of the Fast Track process.

Meanwhile, other players had stepped into the battlefield. In February the Helen Bamber Foundation and the Immigration Lawyers Practitioners Association brought a new case against the Home Office arguing that the Fast Track was still operating in an unfair and unlawful way, in spite of the extra four days that detainees had been given to consult with their lawyers. The Home Office conceded they had lost, and agreed that the Court could make an order declaring that the ‘Detained Fast Track as operated at 2 July 2015 carried an unacceptable risk of unfairness to vulnerable or potentially vulnerable individuals’. On the same day the Ministerial Statement was made to the House of Commons announcing the temporary suspension of the system. Finally, it was over.

One step forward…

But the happy ending this story began with, is only really the beginning of a new story. Two weeks after the ministerial statement the Home Office issued new interim guidance for staff concerning asylum cases in detention. The Home Office maintained that while asylum seekers could no longer be detained under the Fast Track policy, they could still be detained under the general detention policy. If this sounds perverse, that’s because it is. The ‘Slow Track’, as we called it, was born.

Lawyers gathered to discuss the developments. The consensus was that the new policy did not properly reflect the judgements of the Courts, and was therefore unlawful, and should be challenged. But who would do this, and how long would it take? Public interest litigation like the legal battle that brought the Fast Track system down is slow, incredibly costly and risky. In the present climate of legal aid cuts few firms or charities have the means to pursue it. I was shocked, angry and confused by the Home Office’s audacity; it seemed to claim victory even in defeat. The process of detaining, disbelieving, and dehumanising asylum seekers would continue unabated.

It took some time for me to accept that the Fast Track was far from over. Having failed in an attempt to appeal to the Supreme Court, the Home Office is now working on a new policy for a Detained Fast Track v. 2, which they expect to introduce this year. It will, they say, reflect the Courts’ criticisms of the old system, but I don’t hold out much hope.

What does this mean for my clients? Uncertainty still reigns. Despite my many requests, for example, the Home Office have not yet agreed to reconsider Sunil’s case. Sunil is a journalist who was detained and tortured in his native Sri Lanka because he was critical of the regime. When he applied to seek asylum in the UK he was put on Detained Fast Track. But his case should never have been included in the Fast Track and everything that was wrong with the system went wrong in his case. It is now over a year since he submitted all the evidence to support his claim, evidence he hadn’t been allowed time to gather while on DFT, and it could be years more before he finally gets a decision on whether he will be accepted as a refugee. He is no longer detained, but he is no longer the person he was before being taken into detention either. He is withdrawn, hopeless, and frequently suicidal. I worry about him.

I worry too about the impact of this kind of work on me. I see so much injustice, and feel so much anger, that at times I am overwhelmed. But sharing these stories with others, friends, and indeed readers I have never met, helps the anger melt away, because I know that what I believe in is right. And I will continue to fight.

Banner photo by Emmanuel Huybrechts Attribution