United Kingdom [EN] Rights in exile, Detention of asylum seekers not at risk of absconding unlawful

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Article posted the 2015/01/02

[EN] The UK Court of Appeal declared detention of asylum seekers –  not at risk of absconding – unlawful. This decision  should lead to the end of the automatic imprisonment of asylum seekers within the Fast Track procedure. The detention of all asylum appellants currently going through the Fast Track will be  re-assessed


Detention of asylum seekers not at risk of absconding unlawful

This was originally published in the No-Deportations Bulletin on 17 December 2014 and appears here with their permission. No-Deportations provides signposting to anyone in the UK that is subject to UK immigration controls and does not want to leave the UK, for whatever reason.

The UK Court of Appeal ruled Tuesday, 16 December 2014, that a second element of the Home Office’s detained asylum process is unlawful. The Court found that the detention of asylum seekers who are not at risk of absconding whilst their appeals are pending is unlawful. The ruling is the second Court of Appeal defeat in a week for the government’s immigration policy, following Monday’s ruling that the guidance on legal aid for immigration cases is unlawful.

The charity Detention Action had challenged the lawfulness of detaining asylum-seekers during their appeals purely on the grounds that their claims could be processed quickly. Detention Action argued that asylum-seekers who are found to pose no risk of absconding should be released while their appeals are processed.

The Court of Appeal upheld Detention Action’s appeal on the grounds that the policy on detaining asylum seekers during their appeals is not sufficiently clear and transparent. Further, the Court made an alternative finding that, on the material before it, the policy is not justified. Lord Justice Beatson found that: ‘after the Secretary of State’s decision and pending appeal, detention in the fast-track by the application of the ‘quick processing’ criteria cannot be said to be justified and is therefore not lawful’. That the evidence before the court: ‘does not provide the sort of substantial fact-based justification that the Supreme Court indicated would be needed to justify an interference with a fundamental right.’

The Home Office has indicated that it has begun re-assessing the detention of all asylum appellants currently going through the Fast Track. It has indicated that it will assess all asylum appellants on the Fast Track, and release all who are not at risk of absconding. It expects to have made those decisions by 19 December 2014.

Detention Action’s Director Jerome Phelps said: ‘We welcome this judgment. Depriving someone of their liberty for administrative convenience is a grave step under any circumstances. Asylum seekers making appeals are in a situation of enormous stress. Where there is no risk that they will abscond, keeping them locked up cannot be justified. Given that the Fast Track has now twice been found to be operating unlawfully, we urge the government to undertake a fundamental review of the whole process.’

Sonal Ghelani of the Migrants’ Law Project, the solicitor acting for Detention Action, said: ‘It appears that the Home Office has been detaining asylum seekers unlawfully for their appeals for the last six years. It cannot be right or fair that the Home Secretary, as a party to an appeal, is entitled to detain her opponent when the effect of detention is to make the appellant’s conduct of the appeal much more difficult and therefore to make it less likely that he or she will be successful.’

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Date(s) of publication: 02/01/2015
Credits: Rights in exile