Author
General (scope, grounds for accelerated procedures, time limits)
There are two kinds of accelerated procedures: the non-suspensive appeal procedure (NSA) which concerns claims certified as clearly unfounded, and the detained fast-track procedure (DFT). The Detained Fast Track Procedure is currently suspended rather than ceased. Where claims are certified as clearly unfounded the decision making is not accelerated, it is just that the overall process may be shorter because of the lack of appeal.
Non-Suspensive Appeal (NSA)
Firstly, where the claim is certified by the Home Office as clearly unfounded, there is no in-country appeal. These are called Non-Suspensive Appeal (NSA) cases. The majority of cases certified in this way are of applicants from a deemed safe country of origin, but cases are also certified as clearly unfounded on an individual basis. The applicant may often be detained, though not always, and guidance to Home Office decision makers refers to the procedure as a Detained Non-Suspensive Appeal (DNSA). 5,223 claims,[1] about 2% of the total, were certified clearly unfounded in 2022.[2] Albania accounted for almost 75% of these, with 3,893 decisions.[3]
A list of safe third countries is used in relation to certification of claims by the nationals of those countries. Under section 94(1) of the Nationality, Immigration and Asylum Act 2002, the Secretary of State has the power to certify an asylum, humanitarian protection, or other human rights claim as ‘clearly unfounded’. When this is done, the person may not appeal the refusal of their claim. Under section 94(3), claims from certain countries will be certified unless the Secretary of State agrees that the claim is not ‘clearly unfounded’.[4]
As a result of the Nationality and Borders Act, cases certified as clearly unfounded on or after 28 June 2022 have no right of appeal at all.
The Home Office is responsible for making the certification decision and this decision is made after a decision has been made to refuse the claim, it is a two stage process. The policy is that all decisions on a potential NSA case must be made by a caseworker who is trained to make NSA decisions.[5] There was previously a requirement that such decisions must be checked by a second caseworker, but this process was dropped in April 2023.[6]
Guidance to decision makers advises that where the claim is for asylum and human rights protection, both or neither should be certified as unfounded, since any appeals of the two issues must be heard together. The guidance also states that when the asylum seeker comes from a designated state the refusal should not normally be based on the credibility of the individual applicant.[7] This is general practice and is unlike the regular procedure where no such guidance is given and refusal is commonly based on credibility.
The guidance on certification of claims under Section 94 NIAA has been amended and reissued to reflect the necessity to distinguish the decision to certify from the decision to refuse and to underline the need to explain both decisions. This was done following a case in the Upper Tribunal known as FR and KL.[8] In 2018 the Tribunal determined that individualised decisions must be made as to the necessity in out of country appeal hearings of hearing directly from the applicant.[9]
A claim may also be certified clearly unfounded and routed through the NSA on an assessment of the individual merits of the case, not only on the basis of a deemed safe country of origin. This should only be done where the caseworker considers that the claim is so clearly without substance that it is bound to fail,[10] if any reasonable doubt exists as to whether it may succeed then it should not be certified.[11] On that basis, 157 cases were individually certified in 2023.[12]
Detained-Fast Track (DFT) – currently suspended
The DFT procedure was suspended in July 2015, following a series of successful legal challenges relating to the safety and fairness of the procedure, but hasn’t been formally abandoned.[13] The Detained Fast Track procedure (DFT) applied where the Home Office considered that the claim could be decided quickly. In theory the two procedures are very different in that NSA implies that there is no merit, whereas DFT is based on speed. However, informally the DFT also appeared to operate as an ‘unfounded’ procedure.
The defining characteristics of the DFT procedure were speed and detention throughout the decision process. The criteria for being routed into the DFT only required that the case was considered after the screening interview to be capable of being decided quickly and that the asylum seeker was not excluded from the DFT.
The DFT has not been reinstated nor abandoned. The final ‘nail in the coffin’ leading to the suspension was the appeals part of the process.[14] The Ministry of Justice consulted on the Tribunal Procedure Rules for the DFT in autumn 2016 proposing that new rules be laid to enable these expedited appeals to comply with the law.[15] Plans were then outlined in April 2017,[16] but the new procedure has not yet been approved by the Tribunal Procedure Committee. For further information about this procedure, see previous updates to this Country report.
There are provisions in the Nationality and Borders Act 2022 for “accelerated detained appeals” but these are not in force.[17]
Personal interview
There are no grounds in the accelerated procedure to omit a personal interview.
Non-Suspensive Appeal Procedure
The same immigration rules apply to the interview as in the regular procedure (see Regular Procedure: Personal Interview) but they must be conducted by NSA trained caseworkers in the NSA procedure. The practice is also the same, including the long delays in invitations to the substantive interview.
Appeal
Non-Suspensive Appeal Procedure
The Nationality and Borders Act 2022 removed the right of appeal for NASA cases certified on or after 28 June 2022. The procedure below still applies for any cases certified before that date.
In the NSA the appeal is non-suspensive, i.e. it may not be made from within the UK. Appeals must be made within 28 calendar days of leaving the UK.[18] The scope of the appeal is the same as for in-country appeals, but in practice it is very difficult to appeal from outside the UK as people will not have ready access to their legal representative and obviously would not be able to participate in proceedings so easily, depending on their circumstance.
It is possible to challenge the decision to certify the claim as clearly unfounded by judicial review.[19] If successful, it will then be possible to appeal against the decision to refuse the claim.
Legal assistance
The detained fast track has been suspended since 2015. For information on the legal assistance under this scheme, see the previous updates of this report available here. Access to legal assistance for anyone subject to the NSA process is identical to the regular procedure.
[1] Including dependants.
[2] Home Office, Immigration system statistics data tables, Asylum applications, initial decisions and resettlement detailed datasets, year ending December 2023, table Asy_D02, 29 February 2024, available at: https://tinyurl.com/bdhnwfkr.
[3] Home Office, Immigration system statistics data tables, Asylum applications, initial decisions and resettlement detailed datasets, year ending December 2023, table Asy_D02, 29 February 2024, available at: https://tinyurl.com/bdhnwfkr.
[4] Section 94, Nationality and Immigration Act 2002, available at: https://bit.ly/4a2Ai5B.
[5] Home Office, Certification of protection and human rights claims under section 94 of the Nationality, Immigration and Asylum Act 2002 (clearly unfounded claims), November 2023, available at: https://bit.ly/49scDvs.
[6] Ministerial statement, ‘Reforms to the Process of Certifying Claims as Clearly Unfounded Statement UIN HCWS716’, 17 April 2023, available at: https://bit.ly/4bKcrcm.
[7] Home Office, Certification of protection and human rights claims under section 94 of the Nationality, Immigration and Asylum Act 2002 (clearly unfounded claims), November 2023, available at: https://bit.ly/49scDvs.
[8] Court of Appeal, FR and KL v Secretary of State for the Home Department [2016] EWCA Civ 605, 26 June 2016, available at: http://bit.ly/2mRtYs6.
[9] Upper Tribunal, AJ (s. 94B Kiarie and Byndloss questions) v Secretary of State for the Home Department [2018] UKUT 115 (IAC), 28 February 2018, available at: https://bit.ly/2HiNEQV.
[10] House of Lords Thangarasa and Yogathas v Secretary of State for the Home Department [2002] UKHL 36, available at: https://bit.ly/3UOT5gg and Court of Appeal ZL and VL v Secretary of State for the Home Department [2003] EWCA Civ 25 available at: https://bit.ly/42P6g2E.
[11] House of Lords, ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6, available at: https://bit.ly/3wtJZLO.
[12] Home Office, Immigration system statistics data tables, Asylum claims certified under Section 94 detailed datasets, year ending December 2023, table Asy_D08, 29 February 2024, available at: https://tinyurl.com/bdhnwfkr..
[13] Home Office, House of Commons, Written Statement (HCWS83), 2 July 2015, available at: http://bit.ly/1H3ig0I.
[14] Detention Action, ‘The Fast Track is dead’, available at: https://bit.ly/4bOCLBY.
[15] Ministry of Justice, Expedited immigration and asylum appeals for detained appellants, 18 April 2017, available at: http://bit.ly/2l7kEBS.
[16] Ibid.
[17] Nationality and Borders Act 2022, s 27, available at: https://bit.ly/3wAoTLx.
[18] The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 SI 2604 rule 19.
[19] See e.g. in a recent Albanian case H, R (On the Application Of) v Secretary of State for the Home Department [2023] EWHC 2758 (Admin), available at: https://bit.ly/3SRKlDz.