Chapter 14 Updates - September 2021

Detention

A replacement scheme to replace the suspended Detained Fast Track System, entitled ‘accelerated detained appeals’, has been proposed in the Nationality and Borders Bill 2021. Under the proposals, detainees will have 5 days to lodge an appeal and the First-tier Tribunal will have 25 days from the point of an appeal being lodged to determine it. This has yet to be brought into law but critics argue that it has not adequately been explained how an expedited system on such timescales can be operated fairly.

The fact that the Detained Fast Track asylum appeal process was systemically unfair doesn’t mean it was automatically unfair in every case decided under it, the Supreme Court has held in TN (Vietnam) [2021] UKSC 41. The consequence of this decision is that an asylum appeal rejected under the structurally unfair and unlawful Detained Fast Track system is not automatically, nor even presumed, unfair and unlawful. Each case will have to be examined on its own facts.

In MR (Pakistan) v Secretary of State for Justice & Others [2021] EWCA Civ 541, the Court of Appeal decided that the absence of a Rule 35 procedure for identifying vulnerable immigration detainees in prisons is irrational. Detention of all immigration detainees must comply with the Adults at Risk policy. In immigration removal centres, doctors are additionally required by Rule 35 of the Detention Centre Rules 2001 to communicate their concerns about vulnerable detainees to the Home Office. There is no such requirement imposed on doctors in prisons. The result is that vulnerable detainees in prisons cannot in practice benefit from the Adults at Risk policy and suffer prolonged detention as a result. Whilst the court went on to hold that the detention of the two individuals in this case was not unlawful as a result, the case marks an important step in further indicating that prisons are unsuitable places for immigration detention.

In R (Lawal) v Secretary of State for the Home Department (death in detention, SoS’s duties) [2021] UKUT 114 (IAC), the Upper Tribunal decided that the Home Office’s policies on the death of immigration detainees are contrary to its procedural obligations under Article 2 of the European Convention on Human Rights to secure relevant evidence. The judgment found that the lack of guidance to officials considering the removal of potential witnesses was “legally deficient”. 

New statutory guidance came into force on 25 May 2021, according to the Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2021 (SI 2021 No. 184). The Home Office has amended the policy framework to bring consideration of trafficking status within the Adults at Risk guidance.