Detention Action v First-Tier Tribunal (Immigration and Asylum Chamber) and Others Secretary of State for the Home Department (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicol |
| Judgment Date | 12 June 2015 |
| Neutral Citation | [2015] EWHC 1689 (Admin) |
| Docket Number | Case No: CO/588/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 June 2015 |
[2015] EWHC 1689 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Nicol
Case No: CO/588/2015
and
Nathalie Lieven QC and Charlotte Kilroy (instructed by Migrants Law Project at Islington Law Centre) for the Claimant
Oliver Sanders (instructed by Treasury Solicitor) for the 3 rd Defendant
Cathryn McGahey (instructed by Treasury Solicitor) for the Interested Party
Hearing dates: 19 th and 20 th May 2015
In most cases when the Secretary of State for the Home Department ('the SSHD') refuses an application for asylum, there is a right of appeal before removal takes place. The appeal is determined by the First-tier Tribunal (Immigration and Asylum Chamber) – 'the FTT'. The unsuccessful applicant is the Appellant, the SSHD is the Respondent. From the FTT there is a right of appeal with permission on a point of law to the Upper Tribunal (Immigration and Asylum Chamber) — 'the UT'.
The procedure to be followed in the FTT is governed by The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 SI 2014 No. 2604 – 'the FTT Procedure Rules'. Two different regimes are created by these Rules. Rules 1–46 establish the ordinary procedure. They are referred to in the Schedule as 'the Principal Rules' and it is convenient to use that terminology. The Schedule itself is entitled 'The Fast Track Rules'. I will refer to them as 'the FTR' and the procedural regime which they establish as 'the Fast Track appeals'. I will explain later what the consequences are of being a Fast Track appeal, rather than one subject to the Principal Rules and what are the features which determine the applicable regime. It is sufficient to say at this stage that all of those in the Fast Track appeal system are detained.
Procedure in the UT is governed by The Tribunal Procedure (Upper Tribunal) Rules 2008 SI 2008 No 2698. They provide the procedural regime in several of the Chambers of the UT, not just the Immigration and Asylum Chamber. However, the special character of a fast track appeal is maintained, since abbreviated time limits are applied to Fast Track appeals which reach the UT – see r.36A.
Detention Action, the Claimant, is a charity set up in 1993 to support individuals in immigration detention and to campaign on issues relevant to immigration detention. The main issue in these proceedings is whether the FTR are ultra vires i.e. beyond the power to make procedural rules which Parliament has conferred. The Lord Chancellor is named as a Defendant because he has approved the FTR, as the enabling legislation requires. Permission to bring this application for judicial review was granted by McGowan J. on 6 th March 2015.
All the appellants whose appeals are subject to the FTR had their applications for asylum determined by the SSHD in a particularly speedy process known as Detained Fast Track – 'DFT'. It is called Detained Fast Track because all of those subjected to this quick process are detained. Sometimes the expression DFT is used to embrace the subsequent appeal against a refusal of asylum in a Fast Track appeal. Sometimes it is used to refer only to the administrative decision making stage. I shall try to make clear in which sense I use the expression.
The Claimant brought a previous action in 2013 against the SSHD (CO/6966/2013). This was a challenge to the DFT (I will need to say more a little later as to the extent to which DFT in the wider sense was relevant). Ouseley J. gave judgment on 9 th July 2014 — Detention Action v SSHD [2014] EWHC 2245 (Admin) (' DA 1'). While he rejected some of the Claimant's arguments, he accepted others. He heard further argument as to what relief was appropriate in view of his judgment and gave a second decision on 25 th July 2014 — [2014] EWHC 2525 (Admin) (' DA 2'). He decided that while some declaratory relief was necessary, a declaration that the operation of the DFT was unlawful without explaining why would not properly reflect the limited basis of the Claimant's success in DA 1.
Detention Action appealed to the Court of Appeal. The Court, comprising Longmore, Patten and Ryder LJJ, dealt with the appeal so far as it concerned DA 2. The appeal was dismissed – [2014] EWCA Civ 1270. (' DA 3'). The remainder of the appeal was heard by Beatson, Floyd and Fulford LJJ. They gave judgment on 16 th December 2014 – [2014] EWCA Civ 1634 (' DA 4'). In DA 4 the Court held that the SSHD's criteria for determining which cases were suitable for fast-tracking after the refusal of asylum and pending appeal were not objectionable in principle but lacked the requisite clarity and transparency. As criteria for detention beyond the general detention criteria they also appeared (so far as the Court could tell) to lack justification.
The Claimant's second ground for seeking judicial review is that, in consequence of DA 4, the only rational and lawful response of the FTT and the UT would have been to treat all asylum appeals as subject to the Principal Rules and not the FTR. I shall refer to this as the rationality challenge.
Although the First-tier Tribunal (Immigration and Asylum Chamber) and the Upper Tribunal (Immigration and Asylum Chamber) were named as the first two defendants, neither took part in the proceedings. The Lord Chancellor was named as the Third Defendant. He (represented by Mr Sanders) and the SSHD (who was an Interested Party and who was represented by Ms McGahey) opposed the claim.
The differences between the two procedural regimes in the First-tier Tribunal
Much shorter time limits
i) Under the Principal Rules the notice of appeal must be received by the Tribunal not later than 14 days after the person concerned is sent the decision against which an appeal is brought — Principal Rules r.19. A Fast Track notice of appeal must be received within 2 working days of the day on which the person concerned was provided with the decision – FTR r.5(1).
ii) In a case under the Principal Rules the Respondent has 28 days to provide (in summary) any statement of evidence, record of interview, any unpublished document relied on by the Respondent and any fresh decision or further grounds — Principal Rules rr.23 and 24. The equivalent period under the FTR is 2 working days – FTR r.7.
iii) No specific time is set by the Principal Rules for the listing of the appeal. A Fast Track appeal must be listed for hearing not later than 3 working days after the provision of the Respondent's evidence, unless the Tribunal is unable to arrange a hearing within that time, in which case it must be as soon as practicable — FTR r.8(1). This means that the hearing of a Fast Track appeal will normally be within 5 working days of the notice of appeal being lodged and within 7 working days of the decision against which the appeal is brought.
iv) The Principal Rules set no specific time for giving a judgment of the FTT which has been reserved. In the case of a Fast Track appeal the decision and the reasons for it must be given not later than 2 working days after the day of the hearing – FTR r.10.
v) If a case has been heard under the Principal Rules, an application for permission to appeal to the UT must be received not later than 14 days after the date on which the applicant was provided with the decision of the FTT — r.33(2). In the case of a Fast Track appeal, the time limit is 3 working days – FTR r.11.
More restricted case management powers
i) When an appeal is subject to the Principal Rules the Tribunal may extend or shorten the time for complying with any rule, practice direction or direction – r.4(3)(a). When dealing with a Fast Track appeal the Tribunal has no such power – FTR r.1 Table 2, although there is a limited power to extend time for lodging a notice of appeal if that would be in the interests of justice – FTR r.5(2)-(6).
ii) The hearing of an appeal under the Principal Rules can be adjourned or postponed by the Tribunal – r.4(3)(h). When hearing a Fast Track appeal the Tribunal has no such broad power – FTR r.1 Table 2. On the contrary there is a presumption that the hearing must be concluded on the same day – FTR r.9(1). FTR r.12 does allow the Tribunal to adjourn or postpone a Fast Track appeal hearing if it could not be justly decided on the listed day, but only if there is an identifiable date, not more than 10 working days later, on which the Tribunal can conclude the hearing and justly decide the appeal within the timescales provided for in the Fast Track Rules – FTR r.12.
iii) It is right to note that when the Tribunal is dealing with a Fast Track appeal, it has a general power to transfer the appeal out of the fast track "if the Tribunal is satisfied that the case cannot justly be decided within the timescales provided for in the Fast Track Rules." – FTR. r.14(1) Both Mr Sanders and Ms McGahey placed considerable reliance on this provision and I will have to consider it again later.
The criteria for application of the FTR rather than the Principal Rules
FTR r.2(1) provides,
"The Fast Track Rules apply to an appeal to the Tribunal or an application for permission to appeal to the Upper Tribunal where the appellant —
(a) was detained under the Immigration Acts at a place specified in paragraph (3) when provided with notice of the appealable decision against which the appellant is appealing; and
(b) has been continuously detained under the Immigration Acts at a place or places specified in paragraph (3) since that notice was served on the appellant."
Paragraph 3 of Rule 2 then lists Colnbrook...
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