Under the Home Office’s detained fast-track (DFT) procedure, thousands of individuals seeking asylum were subjected to unlawful and unfair treatment for years. Detained and dehumanised, so many were robbed of a fair opportunity to present their cases properly, and were deprived of legal representation.
One particular case saw a young woman unlawfully deported to Uganda, where she was subjected to horrific sexual violence and lived in fear for her life due to her sexuality.
However, in a landmark case, the High Court instructed the Home Office to return the woman to the UK, so that her case could be reconsidered. The woman’s legal representatives, and campaigners as Detention Action and Movement for Justice, hope this case will encourage others who were subjected to the same treatment to come forward.
The DFT procedure was introduced back in 2000 and was used to speed up the assessment of asylum claims, while applicants were detained. The policy’s core intention was to remove asylum seekers from the country as hastily as possible.
According to research by Detention Action, a non-profit organisation campaigning for the reform of the detention system, the system was rigged to disadvantage applicants, and manifestly unfair.
The organisation’s 2011 report, “Fast Track to Despair,” noted that asylum seekers were detained for an average of two weeks, before the process was even initiated. However, a startling one in five were detained for over a month, and the majority of individuals detained were prevented from accessing legal advice.
Yet, once the process began, the accelerated speed at which their cases were propelled meant applicants were completely unprepared. Consequently, the system resulted in a 99% refusal rate, and if applicants wished to appeal the court’s refusal, they had just two days to do so, and over half lacked legal representation.
During the time that the DFT system was operational, 10,000 cases were decided upon. One of these cases belonged to a young woman, (who can not be named for legal reasons, but is referred to in the courts as PN).
PN first arrived in the UK back in 2011 and claimed asylum. At the time she was a teenager of just 17-years-old. She made her claim on the basis that she was lesbian, and that her life would be at risk if she returned to Uganda.
Uganda has a long history steeped in homophobia, and has proposed and introduced a number of laws criminalising homosexuality. This includes Section 145 of the Penal Code Act of 1950, whereby sexual activity that is deemed “unnatural” and is punishable by life imprisonment. The Anti-Homosexuality Bill, which was signed into law in 2014, but later repealed, originally called for the death penalty for all Ugandans found guilty of “aggravated homosexuality”. It also sought to criminalise the “promotion” and “recognition” of homosexuality. Ugandan MPs are now pressing for the Act to be reintroduced.
Despite claiming that she had and would continue to face persecution upon her return to Uganda, in 2013, the Home Office refused to grant her asylum and she was removed from the UK through the DFT system. This decision was made on the grounds that the Home Office did not believe she was a lesbian.
When the young woman returned to Uganda, she was gangraped and fell pregnant with a son, as a result of the sexual violence she was subjected to.
Reflecting on the traumatic events that she survived, the woman, now 27-years-old, said: “I was sleeping one night, the people came, they banged on the door, they stole everything and they raped me. I was on my own in the room”. She added: “I couldn’t tell the police as I don’t want them to know who I am… I moved away from that place. I wanted the doctor to terminate the baby, as I didn’t know if I would be able to manage it, but the doctor said that if I tried to do that I might lose my life. The only people I have in my life are my baby and the people who are helping me in the UK”.
In 2014, Detain Action brought forward its first legal challenge against the legality of DFT, arguing that it breached both common law, and Article 5 (1) of the European Convention on Human Rights (ECHR).
The High Court ruled that the system carried an “unacceptably high risk of unfairness”. Further to this, Mr Justice Ouseley determined that the system had a wide range of failures which made it unlawful. Later, the organisation appealed to the Court of Appeal, that the automatic detention of asylum-seeking appellants was unlawful. This was upheld by Lord Justice Beatson.
Further legal action undertaken by Detain Action, saw Mr Justice Nicol rule that the DFT system incorporated “structural unfairness”.
Subsequently, the fast-track rules, which included incredibly short time-scales, were deemed ultra vires and unlawful. As a result, over 10,000 asylum seekers became eligible to have their cases heard again. However, of course by then it was too late for so many.
PN was one of thousands who was deported under the “procedurally unfair” fast-track system, but she was also the first to have her deportation successfully appealed. On 24 June 2019, the High Court ruled that PN had been prevented from obtaining evidence that would have supported her claim, and had also been unlawfully detained.
The Secretary of State was subsequently ordered to return PN to the UK, in order for her appeal to be heard. This was later taken to the Court of Appeal by the Home Office, however, the appeal was denied on Monday 28 September 2020. On top of this, Lord Justice Dingemans also ruled that PN had been unlawfully detained for four months.
Speaking about her win at the Court of Appeal, PN said: “I’m so happy. I got to a point where I didn’t believe I could get justice against the Home Office. They have treated me like garbage – all the things I went through in detention, all the things I went through when I was sent back and had to live in hiding for six years”. She added: “The Home Office needs to start doing things in a legal way. I had already been through so much when I came here before, and they just put me through more torture. Now I can actually breath”.
Commenting on the case Sulaiha Ali of Duncan Lewis Solicitors, who represented PN, told The Independent: “We welcome the Court of Appeal’s judgment which yet again confirms the unfairness that the detained fast-track process had on asylum seekers in the UK”. She added: “Thousands of individuals were subjected to unfair decisions and removal because of this process, and we hope that like PN, others are able to have their asylum appeals considered afresh so that they are considered fairly and in accordance with the law”.
PN also expressed her hopes that the ruling will mean others receive justice, too: “The system needs to be corrected so it treats people properly. We are human. There are many other people in the same situation as me. They are there in hiding. They don’t know what to do. They think they can’t be helped. I want to encourage them to come out”.
Karen Doyle, the national organiser of campaign group Movement for Justice, who has provided PN with support, expressed the same sentiment. She said: “This is another nail in the coffin for the unlawful detained fast-track procedures which subjected so many asylum seekers to unjust decisions and removals over years. We hope this decision gives inspiration and hope to others in PN’s situation that it is possible to overturn these unjust fast-track decisions”.
Responding to the ruling, a Home Office spokesperson said: “We are disappointed with the outcome of this case which relates to a removal almost seven years ago. As the Court of Appeal has acknowledged, this removal only happened following a number of legal challenges by the individual, all of which failed at the time. We will consider the judgment carefully, including whether or not to further appeal”.