Important Briefing for anyone in detention in the Detained Fast Track Procedure (DFT)
It is hoped that immigration detainees in Colnbrook, Harmondsworth and Yarl's Wood Detention Centres will find this note helpful in making themselves there representatives if they have one; aware of the importance of making an application to transfer his/her case out of the DFT to the Tribunal both in writing and, importantly, orally at the hearing of the appeal, and of the need to support the application with some written or oral evidence of the need to transfer the claim out of fast-track. That evidence can come from the appellant him/herself.
In order to assist in the dissemination of this information, download Detained Fast Track Procedure (DFT).pdf which has a form on page 4, which could be provided to detainees themselves to complete and submit to the Tribunal.
This briefing provided by Sonal Ghelani and Charlotte Kilroy
The Migrants' Law Project Doughty Street Chambers
R (BT) v (1) SSHD & (2) Upper Tribunal (C4/1983/2011)
On 12 December 2011 Sullivan LJ granted BT permission to apply for judicial review of the Upper Tribunal's refusal of permission to appeal against the determination of an Immigration Judge.
Although this is a permission decision, it is significant in that it may be one of the first cases in which permission has been granted following the judgments of the Supreme Court in R (Cart) v Upper Tribunal UKSC 28 and the Court of Appeal in PR (Sri Lanka) & others v Secretary of State for the Home Department  EWCA Civ 988.
The grant of permission also raises the issue of the practical approach to appeals of those asylum seekers whose claims are being determined under the Detained Fast Track Procedure (DFT).
Counsel representing BT are Dinah Rose QC and Charlotte Kilroy.
BT claimed asylum on the basis of her sexuality. She was detained at Yarl's Wood detention centre on the basis that her claim was suitable for determination under the DFT.
Central to BT's case was her account of an attack upon her, as punishment for being a lesbian, which resulted in serious scarring to an intimate part of her body.
Due to the truncated timescales of the DFT she was unable to obtain medical evidence regarding the scarring. This evidence was critical because it would corroborate a key part of her claim, namely that she was attacked because she was a lesbian. The Secretary of State accepted that if she were indeed a lesbian then she was entitled to refugee status.
BT also relied on a newspaper report published in her country of origin 'outing' her as a lesbian.
One of the grounds of appeal raised in the notice of appeal to the First Tier Tribunal was that her case should be taken out of the DFT to enable her to obtain evidence from abroad and locally.
The appeal before the Immigration Judge
In her witness statement for the appeal hearing, BT repeated her complaint that the timescales of the DFT meant that she had been unable to obtain medical evidence regarding her scarring and she expressed willingness to show the Immigration Judge, in private, the scars that she had sustained as a result of the attack upon her.
The application for the case to be taken out of the DFT, however, does not appear to have been repeated orally at the hearing by BT's then representative.
On the day of the hearing, the Secretary of State's representative relied on the results of a key word Google search which indicated an absence of 'hits'. He submitted that the results meant that the newspaper article denouncing BT as a lesbian was unreliable evidence and, in addition, that her reliance on it cast further doubt on her honesty.
BT had no time to rebut the evidence regarding the Google search.
The Immigration Judge did not address the application BT had made in her grounds of appeal for her appeal to be transferred out of fast-track. Instead BT's appeal was dismissed with trenchant adverse findings regarding her credibility.
BT sought permission to appeal against the determination on the basis that her case should have been transferred out of the DFT under Rule 30 of the Asylum and Immigration Tribunal (Fast-track Procedure) Rules 2005. BT was refused permission to appeal by a Senior Immigration Judge (SIJ) of the Upper Tribunal on the basis that there had been no application under Rule 30 (the SIJ apparently did not have the notice of appeal nor the appellant's witness statement before him).
The claim for judicial review
Following the dismissal of her appeal, BT was medically examined by a volunteer doctor at Medical Justice and a medical report was produced in which the doctor concluded that BT did have scars which were consistent with her account.
BT also obtained evidence undermining the finding by the Immigration Judge that her credibility was in doubt due to the Google search results produced by the Secretary of State.
One of the grounds raised by BT in her claim for judicial review is that the failure of the Immigration Judge to adjourn her claim and to transfer it out of the DFT to enable her to obtain medical evidence in support of her claim constituted a fundamental denial of her right to a fair hearing and that the Upper Tribunal's refusal of permission to appeal against that decision was amenable to judicial review under the principles established in R (Cart) v Upper Tribunal.
The grant of permission to claim judicial review
Sullivan LJ granted permission to claim judicial review of the Upper Tribunal's decision to refuse permission to appeal because:
(a) Although there was no application for the case to be transferred out of the DFT at the hearing of the appeal, the application was made in the ground of appeal, and BT's inability to adduce critical supporting medical evidence was made clear in her own witness statement and in the representative's oral submissions;
(b) The material before the Immigration Judge in the grounds of appeal, statement of BT and the submission by the representative was arguably sufficient to put him on notice that he should, of his own motion, have considered whether to take the case out of the DFT;
(d) There was, at least, arguably, a collapse of fair procedure which given the importance of the evidence had, arguably, caused truly drastic consequences.
Applications under Rules 28 and 30 of the DFT particularly by unrepresented appellants
Reports expressing concern regarding the operation of the DFT by NGOs such as Bail for Immigration Detainees (BID) and Detention Action refer to the large number of appellants who are unrepresented or inadequately represented before the Tribunal.
It is hoped that NGOs and representatives with contracts to provide advice under the duty advice scheme working with immigration detainees in Colnbrook, Harmondsworth and Yarl's Wood Detention Centres will find this note helpful in making detainees themselves aware of the importance of making an application to transfer his/her case out of the DFT to the Tribunal both in writing and, importantly, orally at the hearing of the appeal, and of the need to support the application with some written or oral evidence of the need to transfer the claim out of fast-track. That evidence can come from the appellant him/herself.
As representatives will be aware, in most cases, further evidence through witness statements, expert reports from country experts or doctors, and authenticated documents is likely to be needed in order to rebut adverse findings of credibility in the reasons for refusal letter. Usually, such information cannot be obtained prior to the refusal of the claim due to the tight timescales of the DFT process. This means it is critical that appellants should have an opportunity to adduce this evidence for their appeal, but if their appeal is heard in the fast-track process it is very unlikely to be available in time.
Since the timescales for the appeal hearing do not allow for a case management hearing as is the norm in non-DFT appeals then an application to adjourn or transfer out of the DFT under Rules 28 and 30 is the only opportunity to seek time to adduce further evidence within the DFT.
Representatives should be aware of the important concession made by the SSHD in SH(Afghanistan)  EWCA Civ 1284 (see para 3) that the reference to exceptional circumstances in Rule 30 of the Fast-track Rules imposes no test additional to the issue of whether the appeal could be justly determined. Moses LJ stated:
"It is impossible to conceive of circumstances in which an appeal could not be justly determined under the Fast-track procedure but the circumstances were not exceptional."
Representatives should also make sure the Tribunal is aware that an appeal enters the fast-track process purely because an appellant is detained in one of the detention centres in the Schedule to the Fast-track Rules (see Rule 5). This means that no positive decision has been taken that the appeal is suitable for fast-track. The Secretary of State's decision that the claim for asylum is suitable for fast-tracking is a different decision taken before the issues in dispute are identified in the refusal letter. It should not be relied on by the FTT. The key question for the FTT is whether fairness requires that the appellant should have an opportunity to adduce evidence from expert and/or other witnesses in support of his/her appeal against the Secretary of State's decision, the reasons for which are set out in the refusal letter, and if so whether this evidence can be obtained in the fast-track timetable. If that evidence is relevant to the issues in the case then fairness will demand that the appellant should have a reasonable opportunity to adduce it. The FTT should not prejudge the outcome of that evidence, or of the case as a whole, or impose a higher test on the submission of evidence in fast-track cases than in normal cases.
In order to assist in the dissemination of this information, a form is attached which could be provided to detainees themselves to complete and submit to the Tribunal.
Sonal Ghelani and Charlotte Kilroy
The Migrants' Law Project Doughty Street Chambers