February 23, 2010

IV. The Detained Fast Track Procedure

Fast Track is just a factory for sending people away... I am so scared.
— Aabida M., Yarl’s Wood immigration removal center, June 17, 2009

The Development of the Detained Fast Track Procedure (DFT)

Detained Fast Track (DFT) is one of the key elements of the New Asylum Model (NAM) facilitating faster decision making on asylum cases.[56] When the Labour government came to power in the late 1990s, it stated that it intended to address the then high number of asylum applications (it has gone down significantly over the past decade) and the consequent backlog of cases in the UK.[57]

In March 2000, the then Minister of State for the Home Office, Barbara Roche, announced the creation of an accelerated procedure for men including detention to be implemented at the reception center at Oakington near Cambridge.[58] This was seen as a flagship scheme to help deal with the applications backlog and to facilitate faster and a greater number of removals.

This was the first time in the UK that asylum seekers were to be placed in detention with administrative convenience as the objective.[59] Prior to this, anyone claiming asylum in the UK was required to report to a center at a given time and their claim would be handled without detention—only those asylum seekers who were rejected and about to be removed were detained.

The new accelerated procedure was intended to facilitate an asylum decision as fast as possible. For that to be achieved, it was considered necessary to ensure that applicants would be readily available for every part of the process, without the risk of them absconding, “otherwise claimants would likely be unwilling to comply with asylum procedures.”[60] Initially limited to Oakington, the original rationale was to have a relaxed regime of minimum physical security, only applicable to single males, with on site legal representation, and a maximum of seven days in detention.[61] If a claim was refused, the appeal would take place outside the fast track timetable and would not involve detention.[62] While the UK Home Office has not been completely clear about why the procedure was initially only for single males, it would appear that their flight risk was considered greater or that their cases were more often considered unsubstantiated.[63]

Since March 2000 the rules have changed on several occasions. Most changes have chipped away at the ability of asylum seekers to present a claim supported by evidence, thereby further eroding the right to a full and fair asylum determination process.

The first version of the fast track procedure was challenged in the Saadi v. UK case in 2001 and 2002, which went all the way to the Grand Chamber of the European Court of Human Rights.[64] Mr. Saadi, along with several fellow Iraqi asylum seekers, claimed that his seven day detention for fast track processing violated Article 5 of the European Convention on Human Rights.[65] In 2001 the UK Court of Appeal ruled that detention was not unlawful and this decision was upheld in 2002 by the Law Lords.[66] The European Court ruled that as long as the detention took place in reasonable conditions and its length was not excessive, it was proportionate—and that the detention of seven days was not a violation of Article 5.[67]

In March 2003, the then Minister for immigration and Counter Terrorism, Beverley Hughes, used this approval of the use of detention by the courts to introduce a variant of the accelerated procedure that brought the appeals process into the fast track procedure for the first time. In other words, in some cases appeals against the rejection of an asylum claim were now to take place within an accelerated timeframe and while the asylum seeker was in detention.[68] The Home Office claimed this was justified because it was limited to “single male applicants from countries which are believed by the [Home Office] to be those where in general there is no serious risk of persecution.”[69]

In April 2003 the Harmondsworth Immigration Removal Centre near London Heathrow Airport became the location for the implementation of this new fast track procedure.

Up until 2004 there was no procedure in place for re-routing a claim back into the standard asylum procedure should it become obvious that an error had been made in the original routing. However, in 2004 the Court of Appeal ordered the Home Office to adopt a flexibility policythat allows case owners to remove cases from the detained fast track, following a legal challenge by the Refugee Legal Centre (now Refugee and Migrant Justice).[70]

The Home Office’s five-year (2005-2010) strategy for immigration stipulated that the detained fast track would be increasingly used and that women would also be brought into it:

We will expand the detention capacity we have for those whose claims are considered under our current fast track processes, for those suitable for a quick decision. We will open a new detention facility for single females linked to the fast track process.[71]

Then in May 2005 the government announced that the Yarl’s Wood Immigration Removal Centre near Bedford was to be used to detain and process women in the fast track procedure. Yarl’s Wood has a capacity for 284 single women and 121 bedspace for families (not going through DFT.) Since that time, women in the DFT procedure remain in detention throughout the asylum application and appeal process until they are removed, granted status, or transferred back into the standard asylum procedure.

The 2005 Five Year Strategy included a projection to increase the numbers of asylum seekers going through the accelerated procedure, including women: “we project that up to 30 percent of new asylum applicants will be put through a fast track detained process.”[72]

The UK Border Agency has as a target under their “public service agreement” that by the end of 2011, the UKBA will conclude 90 percent of new asylum claims within six months from application.[73] In 2008, roughly 61 percent of cases in the asylum system were concluded within six months.[74] The fast tracking of cases is an important part of the strategy to achieve the six-month target. Performance against this indicator will be reported to the Border and Immigration Agency Board, which is charged with intervening with UKBA should performance not reach the target.[75] As the Medical Foundation for the Care of Victims of Torture put it to Human Rights Watch, “The pressure to meet case conclusion targets may be driving an ever stronger reliance on the DFT.”[76]

The DFT Procedure

As described above, the screening interview—at which no substantive questions are asked—determines whether a woman is routed through the standard asylum procedure or whether she is placed in detention straight away under the fast track procedure. If a woman asylum applicant is identified as suitable for the Detained Fast Track procedure, she is immediately placed in Yarl’s Wood. Her asylum interview with a UKBA case owner usually takes place a day after arrival, as opposed to eight to twelve days after the claim is lodged in the standard procedure.

The decision will usually be served on the applicant about two days after the asylum interview, as opposed to 30 days after the claim in the standard procedure. She has two days in which to lodge an appeal, and there will be a maximum of 11 days before an appeal is heard, as opposed to one to three months within the standard procedure.[77] This makes the total period of time for a case to be heard from start to the appeal stage about two weeks.

Similar to the regular asylum procedure, the applicant can ask for a reconsideration of their appeal[78]  or take the matter to the High Court and ask for a judicial review.[79]

Table 2 gives an overview of the steps in this procedure.

Guidance on Who Should be placed into Fast Track

In 2007 the Home Office issued a guidance note for those who work on fast track case processing, which included a list of 56 countries deemed to be suitable for the procedure.[80]  A list of “safe countries” would not provide an accurate picture of the persecution of women where governments are not themselves the perpetrators of abuse, but where they nevertheless consistently fail to protect women against private abuse. There were countries on the list from which asylum seekers were deemed “likely to be” suitable for fast tracking that do not have laws in place to protect women from various forms of violence, and where laws that are in place are not implemented.[81]

A striking example is Afghanistan, which was on the list, and which has failed to protect women who have been and still are denied basic rights either by official government decree or by their own husbands, fathers, and brothers. Most recently, in August 2009 Afghanistan adopted a law which, among other things, gives a husband the right to withdraw basic maintenance from his wife, including food, if she refuses to obey his sexual demands.[82]

The country list was dropped from the guidance note in the summer of 2008. However, there remains concern among practitioners that the list is actually still in informal use. It contained countries such as Pakistan, Sierra Leone, China, Nigeria, Jamaica, Uganda, and Kenya that even now are among the countries of origin from which applicants are most commonly put into DFT (see table 1 below).[83]

The changes to the guidance note in 2008 included the important amendment that any claim is suitable for fast track when it can be decided “quickly”.  The 2008 guidance note also includes a list of exceptions which are considered unsuitable for the DFT procedure.[84] These include women who are more than 24 weeks pregnant, unaccompanied children seeking asylum, “whose claimed date of birth is accepted by the UK Border Agency,” and those requiring 24 hour nursing or care.

Another exception is those for whom there is independent evidence of trafficking or torture. The corollary of this is that victims of torture and trafficking who do not have evidence with them when they apply for asylum, including expert reports and medical reports, may end up being placed into the Detained Fast Track procedure.[85]

According to the DFT intake instructions, any assessment of whether a quick decision is possible must be made in light of all of the facts of the case.[86] Cases where a quick decision may not be possible may include, but are not limited to:

  1. Cases where it is foreseeable that further inquiries (whether by the UK Border Agency or the applicant) are necessary, without which a fair and sustainable decision could not be made;
  2. Cases where it is foreseeable that translations are required in respect of documents presented by an applicant.[87]

While this appears reasonable, the assessment of case suitability for DFT is carried out at a screening interview where no substantive questions about the facts supporting the claim are asked.

Once the UKBA officer conducting the screening interview is satisfied that the claimant is suitable for the fast track procedure, he or she will contact the Asylum Intake Unit (AIU) at Yarl’s Wood and fax the screening interview record to AIU. The intake unit then checks the suitability criteria. As noted in the intake instructions, “detention space is limited, and so detention resources must be used carefully to achieve the best outcome.”[88] Practical considerations appear to include whether there are any beds available in the removal center at the time of the claim and whether women can be relatively easily removed, for example whether they have valid travel documents.

Origins of women put into DFT

Publicly available UKBA statistics on countries of origin of asylum applicants are not disaggregated by gender for all asylum seekers, so it is not possible to identify from where women have come across all applications. However, information is available on the top fifteen countries of origin of women put into the DFT procedure in 2007 and 2008.

Table 1: Countries of origin of women placed into DFT 2007 and 2008 in order of numbers

Top 15

Countries of Origin Women DFT 2007[89]

Top 15

Countries of Origin Women DFT 2008[90]

Nigeria

China

Pakistan

Nigeria

China

Pakistan

Sri Lanka

Kenya

Jamaica

Jamaica

Cameroon

Uganda

India

South Africa

Uganda

Sri Lanka

Kenya

Malawi

Ghana

India

Turkey

Turkey

Gambia

Ghana

Malawi

Iran

Dem. Rep. of Congo

Gambia

Sierra Leone

Sierra Leone

Many of these countries have seriously flawed records when it comes to women’s rights. Some such as the Democratic Republic of Congo have well documented and severe problems with sexual violence during conflict.[91] Others, such as Iran and Pakistan, have laws that profoundly discriminate against women and provide limited protection from harmful traditional practices and other forms of violence.[92] Others still are countries of origin for trafficking for sexual exploitation and other forms of slavery to the UK, such as Nigeria and Uganda.[93]

Table 2: Overview of the Detained Fast Track procedure

[56]The New Asylum Model was introduced by the Home Office, “Controlling our Borders: Making Migration Work for Britain. Five year strategy for asylum and immigration,” February 2005, http://www.ukba.homeoffice.gov.uk/sitecontent/documents/aboutus/reports/fiveyearstrategy/asylumandimmigration?view=Binary (accessed September 24, 2009).

[57]See for example Will Somerville, “Immigration under New Labour”, Bristol 2007, Don Flyn, “British Immigration Policy, New Labour, and the rights of migrants: A critical assessment,” http://www.signsofthetimes.org.uk/flynn%5Btextonly%5D.html (accessed November 6, 2009) and Jonathan Ensor and Amanda Shah, The United Kingdom, in Jan Niessen et.al. (Eds.), “Current Immigration Debates in Europe: A Publication of the European Migration Dialogue,” September 2005.

[58]Hansard HC, 16 March 2000, Vol. 364, Col 385 WS.

[59] Immigration Law Practitioners’ Association (ILPA), “The Detained Fast Track Process, a best practice guide,” January 2008, p. 2.

[60]As explained by Ian Martin, inspector in the Immigration and Nationality Directorate in a witness statement for the case of R (Saadi et ors) v SSHD [2001] EWHC Admin 670.

[61]As explained by Justice Collins in the case R (RLC) v SSHD [2004] EWHC 684 (Admin).

[62]Ibid.

[63]Human Rights Watch Interview with UKBA official, September 15, 2009. A specific asylum procedure for men, as was the case, is discriminatory in nature and would not be in line with the UK’s human rights obligations, for example under article 14 of the ECHR.

[64]Case of Saadi v. the United Kingdom, Application no. 13229/03, Judgment of 29 January 2008, http://cmiskp.echr.coe.int/tkp197/view.asp?item=3&portal=hbkm&action=html&highlight=saadi&sessionid=30375592&skin=hudoc-en (accessed September 24, 2009).

[65]Article 5 (1) (f) of the ECHR reads: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (…) f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”

[66]House of Lords, R (Saadi) v Secretary of State for the Home Department, 1 WLR 3131, October, 2002.

[67]Case of Saadi v. the United Kingdom, Application no. 13229/03.

[68]Hansard HC Vol 401 Col 42WS, 18 March 2003.

[69] As later explained by Justice Collins in the case R (RLC) v SSHD [2004] EWHC 684 (Admin).

[70]Detained Fast Track Processes Operational Instruction on Flexibility in the Detained Fast Track, April 2005, http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/asylumprocessguidance/detention/guidance/Detained_fast_track_process1.pdf?view=Binary (accessed November 12, 2009). And the legal challenge to the fast track system: R (RLC) v SSHD [2004] EWHC 684 (Admin).

[71]Home Office, “Controlling our Borders: Making Migration Work for Britain. Five year strategy for asylum and immigration,” February 2005,  http://www.ukba.homeoffice.gov.uk/sitecontent/documents/aboutus/reports/fiveyearstrategy/asylumandimmigration?view=Binary (accessed September 24, 2009), para. 68.

[72] Home Office, “Controlling our Borders: Making Migration Work for Britain. Five year strategy for asylum and immigration,” February 2005, p. 36.

[73] Public Service Agreement Target 3.2, indicator 2 “Reduce the time to conclusion of asylum applications,” http://www.hm-treasury.gov.uk/d/pbr_csr07_psa3.pdf (accessed February 10, 2010). 

[74] Home Office, “Asylum statistics United Kingdom 2008,” Home Office Statistical Bulletin, September 14, 2009.

2008, p. 41.

[75] Public Service Agreement Target 3.2, indicator 2 “Reduce the time to conclusion of asylum applications,” http://www.hm-treasury.gov.uk/d/pbr_csr07_psa3.pdf (accessed February 10, 2010).

[76] Sonya Sceats, Medical Foundation for the Care of Victims of Torture, email correspondence with Human Rights Watch, February 10, 2010.

[77]Refugee Council, “Briefing: The New Asylum Model,” August 2007, p. 3.

[78] Article 26(6), “Asylum and Immigration Tribunal Procedure Rules,” http://www.ait.gov.uk/Documents/2005_ProcedureRules.pdf (accessed February 10, 2010).

[79] Section 2, “Her Majesty’s Courts Service Guidance note on applying for judicial review,” http://www.hmcourts-service.gov.uk/cms/1220.htm (accessed February 10, 2010).

[80]Home Office, “Suitability for Detained Fast Track (DFT) and Oakington processes,” 28 July 2007.

[81]Border and Immigration Agency: Asylum Process Instruction Suitability for Detained Fast Track (DFT) and Oakington processes, July 2007, http://www.homeoffice.gov.uk/about-us/freedom-of-information/released-information/foi-archive-immigration/8834_fast_track_asylum?view=Binary (accessed November 11, 2009).

[82] See for example Human Rights Watch, “Afghanistan: New Law Threatens Women’s Freedom”, April 14, 2009, available at http://www.hrw.org/en/news/2009/08/13/afghanistan-law-curbing-women-s-rights-takes-effect (accessed September 24, 2009).

[83]See overview of countries of origin of women placed into fast track below in Table 2.

[84]Home Office, “DFT & DNSA Intake Selection,” AIU instruction (No date in document), http://ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/asylumprocessguidance/detention/guidance/dftanddnsaintakeselection?view=Binary (accessed October 1, 2009).

[85]Home Office, “DFT & DNSA Intake Selection,” AIU instruction, para.2.3 includes: “Those for whom there has been a reasonable grounds decision taken [and maintained] by a competent authority stating that the applicant is a potential victim of trafficking or where there has been a conclusive decision taken by a competent authority stating that the applicant is a victim of trafficking; Those in respect of whom there is independent evidence of torture.”

[86]Home Office, “DFT & DNSA Intake Selection,” AIU instruction, para.2.2.1.

[87]Home Office, “DFT & DNSA Intake Selection,” AIU instruction, para.2.2.3.

[88]Home Office, “DFT & DNSA Intake Selection,” AIU instruction, para.5.1.

[89]Home Office, “Asylum statistics United Kingdom 2007,” Home Office Statistical Bulletin, 21st August

2008, p. 72.

[90]Information compiled from the 4 Quarterly Statistical Summaries for 2008, “Control of Immigration,” available at http://www.homeoffice.gov.uk/rds/immigration-asylum-stats.html (accessed September 30, 2009).

[91]See example: Human Rights Watch, “Soldiers Who Rape, Commanders Who Condone: Sexual Violence and Military Reform in the Democratic Republic of Congo,” July 16, 2009, http://www.hrw.org/en/reports/2009/07/16/soldiers-who-rape-commanders-who-condone-0 (accessed September 30, 2009) and Human Rights Watch, We’ll Kill You If You Cry. Sexual Violence in the Sierra Leone Conflict, January 16, 2003, http://www.hrw.org/en/reports/2003/01/16/well-kill-you-if-you-cry (accessed September 30, 2009).

[92]See example: Ali Dayan Hassan, “Living with the Taliban,” Guardian Online, April 29, 2009, http://www.guardian.co.uk/commentisfree/2009/apr/29/pakistan-taliban-human-rights-india (accessed September 30, 2009).

[93]Eaves, the Poppy Project, “Of Human Bondage. Trafficking in women and contemporary forms of slavery in the UK”, June 2009, p. 23, http://www.eaves4women.co.uk/Documents/Recent_Reports/Of_Human_Bondage_trafficking_in_women_and_contemporary_slavery_in_the_UK.pdf (accessed October 1, 2009).