Accelerated procedure

United Kingdom

Country Report: Accelerated procedure Last updated: 21/06/21

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General (scope, grounds for accelerated procedures, time limits)

 

There are two kinds of accelerated procedures: the non-suspensive appeal procedure (NSA) and the detained fast-track procedure (DFT). The Detained Fast Track Procedure is currently suspended rather than ceased.

 

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). 659 claims[1], about 8% of the total, were certified clearly unfounded in 2020.[2] India, Albania, Nigeria and Brazil were the most common nationalities, between them accounting for around 80% of those people whose claims were certified unfounded during 2020.[3]

 

The most common reason for a claim to be certified as clearly unfounded and thus routed through the NSA procedure is that the asylum seeker comes from a country, which is considered to be safe. Countries are treated as safe if they are designated as such in binding orders made under Section 94 NIAA or in the Act itself (see Safe Country of Origin).[4]

 

There is no time limit for a decision to be made in such a case, although the Home Office guidance states that the aim is to decide within 14 calendar days. The Home Office is responsible for making the decision. The policy is that all decisions on a potential NSA case must be made by a caseworker who is trained to make NSA decisions, and must be looked at by a second ‘accredited determining officer’ who decides whether to accept the first officer’s recommendation.[5] The Independent Chief Inspector of Borders and Immigration noted a lack of objective standards in accrediting this officer, and of consistent understanding of this role and its remit.[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 but on objective country material.[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 incapable of succeeding before an independent tribunal.[10] On that basis, 74 cases were individually certified in 2020.[11]

 

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.[12] 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.[13] 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.[14] Plans were then outlined in April 2017,[15] but the new procedure has not yet been approved by the Tribunal Procedure Committee. No new developments have taken place since then.

 

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.

 

Detained-Fast Track Procedure

 

In the DFT procedure the interview was required to take place on the day after arrival. In practice asylum seekers in the DFT could wait on average 11 days for an interview.[16] The interview was conducted by a Home Office case worker. Unlike the regular procedure, the interview takes place in detention. No study has been done on the impact of personal interviews taking place in detention. Lawyers said that the quality of interviewing in the DFT was less skilful, tending to focus extensively on detail and not on the major issues in the claim.

 

Transcripts and tape recordings were provided of interviews in the DFT as in the regular procedure. Interpreters were available as in the regular procedure.

 

Appeal

 

Non-Suspensive Appeal Procedure

 

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.[17] 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.

 

Detained-Fast Track Procedure

 

The DFT is currently not operational.

 

In the DFT no removal would take place until the appeal had been decided, but the appeals took place in a building adjoining the detention centre, and detention was maintained until the case was concluded or removed from the DFT. There have been two different challenges to the lawfulness of detained fast track appeal process. These have resulted in the suspension of the operation of the DFT.

 

Firstly, detention pending appeal in the DFT was held by the Court of Appeal to be unlawful unless it is justified on normal detention grounds, i.e. with regard particularly to risk of absconding and imminence of removal. The Court found that the practice which had developed in the DFT was to detain people pending appeal in the DFT purely based on the criteria of speed and convenience without considering whether they were at risk of absconding. This was unlawful.[18]

 

In a second case, Detention Action challenged the lawfulness of the rules governing the fast track appeals.[19]

 

The Court of Appeal held that:

 

“[T]he time limits are so tight as to make it impossible for there to be a fair hearing of appeals in a significant number of cases…The system is therefore structurally unfair and unjust. The scheme does not adequately take account of the complexity and difficulty of many asylum appeals, the gravity of the issues that are raised by them and the measure of the task that faces legal representatives in taking instructions from their clients who are in detention.”[20]

 

In a judgment that was promulgated on 20 January 2017,[21] the High Court found that the unlawful policy had been in operation from 2005 to 2014, affecting many more asylum seekers. However, it refused to quash the appeals. This decision was upheld by the Court of Appeal in December 2018.[22]

 

Legal assistance

 

 

The following information relates to the Detained Fast Track Procedure as it operated immediately prior to its suspension in 2015. Unlike in the regular procedure, fast track detainees were entitled to have a publicly funded legal adviser present at their initial interview. However, the judge commented in the 2014 Detention Action case that:

 

“Legal representatives are not excluded from the interview, if the applicant already has a representative, but where the applicant does not have one, the presence of a lawyer is not facilitated.”[23]

 

Asylum seekers in the DFT were not guaranteed legal representation before the tribunal. Research in 2011 revealed that 63% of asylum seekers were unrepresented at their DFT appeal,[24] and Freedom of Information requests showed that in 2012, 59% asylum-seekers in Harmondsworth were unrepresented at the first appeal. 1% won their appeals, compared to 20% of those with a representative.[25]

 

To obtain publicly funded legal advice in making their claim they were limited to a representative from a solicitors firm with a contract to do DFT work and who was available. There is substantial dissatisfaction among asylum seekers with the quality of legal representation available in detention. Lawyers who work in the DFT say that it is very difficult to do the work effectively. They may have no opportunity to take instructions or meet the client before the asylum interview. This was endorsed by the High Court in the 2014 Detention Action judgment.

 

 

[1]Total number subject to certification was 755 (including dependants)

[2]Home Office, Immigration Statistics.

[3]Ibid.

[4]Section 94 NIAA.

[5]Home Office, Asylum decision-making guidance: Non-Suspensive Appeals (NSA): Certification under s.94, October 2014, available at: https://bit.ly/3awaYqr.

[6]Independent Chief Inspector of Borders and Immigration: An Inspection of the Non-Suspensive Appeals process for ‘clearly unfounded’ asylum and human rights claims July 2014, available at: http://bit.ly/1Bq4LIW.

[7]Home Office, Asylum decision-making guidance: Non-Suspensive Appeals (NSA): Certification under s.94, para. 2.2.

[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]Court of Appeal, NA (Iran) v Secretary of State for the Home Department [2011] EWCA Civ 1172.

[11]Home Office, Immigration Statistics.

[12]House of Commons, Written Statement (HCWS83) Home Office Written Statement made by: The Minister of     State for Immigration, 2 July 2015, available at: http://bit.ly/1H3ig0I.

[13]Detention Action, ‘The legal challenge’, available at: http://bit.ly/2jITAYA.

[14]Ministry of Justice, Expedited immigration and asylum appeals for detained appellants, available at: http://bit.ly/2l7kEBS.

[15]Ministry of Justice, Expedited immigration and asylum appeals for detained appellants, 18 April 2017, available at: http://bit.ly/2l7kEBS.

[16]Independent Chief Inspector of Borders and Immigration, Asylum: A Thematic Inspection of the Detained Fast Track, ICIBI, 2012, available at: http://bit.ly/1JXaARf.

[17]The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 SI 2604 rule 19.

[18]Court of Appeal, R (on the application of Detention Action) v Secretary of State for the Home Department [2014] EWCA Civ 1634.

[19]The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 SI 2406 Schedule rule 5; TheTrib unal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 SI 2406 Schedule rules 7 and 8; The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 SI 2406 rule 10. For more detailed information on the applicable time limits during that time consult: AIDA, Country report: United Kingdom, Update 2018, available at www.asylumineurope.be.

[20]Court of Appeal, The Lord Chancellor v Detention Action [2015] EWCA Civ 840, para 45.

[21]High Court, R (TN) v Secretary of State for the Home Department [2017] EWHC 59 (Admin), 20 January 2017, available at: http://bit.ly/2kPYike. See also Detention Action, ‘High Court rules asylum-seekers denied justice in detention for 10 years’, 20 January 2017, available at: http://bit.ly/2kfJNGQ.

[22]Court of Appeal, TN (Vietnam) v Secretary of State for the Home Department [2018] EWCA Civ 2838, 19 December 2018, available at: https://bit.ly/2RzKtKP.

[23]High Court, Detention Action v Secretary of State for the Home Department [2014] EWHC 2245 (Admin), para 96.

[24]Tamsin Alger and Jerome Phelps, Fast Track to Despair, Detention Action, 2011, available at: http://bit.ly/1LhrIl6.

[25]Detention Action, DFT Briefing, 2013, available at: http://bit.ly/1JX05NV.

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection