The Refugee Legal Centre, R (on the application of) v Secretary of State for the Home Department

A fast-track asylum procedure is not unlawful merely because it is rapid. Its legality depends on whether, assessed at the point of entry, it exposes asylum-seekers to an unacceptable risk of unfair processing.

The executive may pursue speed, but cannot sacrifice the irreducible minimum of due process. In asylum cases, the individual interest is such that the highest standards of fairness are required and administrative convenience cannot justify unfairness.

A compressed timetable must operate with genuine, structured flexibility. A public written policy should identify circumstances in which fairness requires more time. Where that flexibility is lawfully applied, the Harmondsworth system is capable of operating fairly and is not inherently unlawful.

The Refugee Legal Centre appealed from the decision of Collins J in the Administrative Court, [2004] EWHC 684 (Admin), [2004] Imm AR 142. The judge had refused to declare unlawful the Harmondsworth detained fast-track system for asylum claims.

The scheme ordinarily allowed an applicant to meet a legal representative and undergo the substantive asylum interview on the day after arrival. A decision normally followed the next day, with expedited appeal procedures. The claimant contended that this timetable was inherently unfair, particularly because it provided no assured time for post-interview advice and representations.

The central issue was whether the system gave asylum-seekers a fair opportunity to put their cases, or instead created an unacceptable systemic risk of unfairness.

1. Appeal dismissed. The court held that the Harmondsworth fast-track system was not inherently unfair or unlawful. Collins J had therefore been right to refuse relief.

2. The correct question was not whether every case could be fairly processed at speed. It was whether the system afforded asylum-seekers a fair opportunity to put their cases and, at the point of entry, created an unacceptable risk of unfair processing. A system need not be risk-free, but the risk of unfairness must be reduced to an acceptable minimum. Individual judicial review does not answer a systemic challenge where unfairness inheres in the procedure itself: see R (L) v Home Secretary [2003] EWCA Civ 25.

3. The executive could legitimately take account of the need for rapid asylum decisions. But fairness could not be subordinated to speed, convenience or expediency. The court adopted the procedural-fairness balance of the individual interest, the benefit of additional safeguards and the administrative cost of compliance. In asylum cases, the gravity of the individual interest required the highest standards of fairness: Thirukumar [1989] Imm AR 402. Administrative convenience could not justify unfairness: R v Home Secretary, ex parte Fayed [1998] 1 WLR 763.

4. The appeal process could reduce the risk of unfairness but could not cure all unfair initial interviews. An interview record obtained in unduly stressful circumstances could contain omissions or inconsistencies that later damaged credibility and could not be repaired on appeal.

5. The court identified a real tension between the necessary flexibility of the scheme and an unwritten concern not to compromise its integrity. A general assertion that flexibility was ingrained was insufficient. A public written policy should require enlargement of the standard timetable where fairness demanded it, including where an applicant was distressed or exhausted, needed further advice, or required evidence or representations after interview.

6. Subject to that lawful and genuine flexibility, the three-day timetable was a guide rather than a rigid rule. Unlike R (Q) v Home Secretary [2003] EWCA Civ 364, no individual adverse decisions had been shown to have been vitiated by procedural unfairness. The identified risk required attention, but did not establish that the system itself was unlawful.

• Court of Appeal (Civil Division): Dismissed the Refugee Legal Centre’s appeal and upheld the refusal of relief.

• Administrative Court: Collins J held that the Harmondsworth fast-track asylum procedure was not inherently unfair or unlawful: [2004] EWHC 684 (Admin), [2004] Imm AR 142.