R Immigration Law Practitioners, Association v Tribunal Procedure Committee and Another
| Jurisdiction | England & Wales |
| Judge | The Honourable MR Justice Blake |
| Judgment Date | 15 February 2016 |
| Neutral Citation | [2016] EWHC 218 (Admin) |
| Docket Number | Case No: CO/246/2015 |
| Court | Queen's Bench Division (Administrative Court) |
[2016] EWHC 218 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon Mr Justice Blake
Case No: CO/246/2015
Amanda Weston and Sadat Sayeed (instructed by Birnberg Peirce and Partners) for the Claimant
Oliver Sanders (instructed by Treasury Solicitor Government Legal Department) for the Defendants
Hearing dates: 9 December 2015
Introduction
On 20 October 2014, the Tribunal Procedure (First-Tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (SI 2014/ 2604) (hereafter the Rules) came into force. They replaced the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005/ 230) (the AIT Rules) that until then had continued in force despite the creation of an Immigration and Asylum Chamber in both the First-tier (FtT) and Upper Tribunal (UT) in February 2010. The AIT Rules in turn had been preceded by Immigration Appeal (Procedure) Rules or Asylum Appeal Rules in 1972, 1984, 1996, 2000 and 2003.
It was a feature of all the previous rules that although there were no formal provisions governing the admissibility of evidence, the Tribunal determining the appeal had to decide appeals on the basis of evidence made available to all parties: see for example rule 51 (7) of the AIT Rules that were in force from April 4 2005 to 19 October 2014 stating that (the Tribunal) 'must not take account of any evidence that has not been made available to all the parties'.
This rule was subject to a statutory exception in s.108 of Nationality, Immigration and Asylum Act 2002 that prohibited disclosure to an immigrant appellant of techniques used to discover forged identity documents.
The 2014 Rules adopted a new approach. Rule 13 (2) permitted the Tribunal to give a direction prohibiting the disclosure of a document or information to a person (including the appellant) if satisfied that such disclosure would be likely to cause that person or some other person serious harm and the Tribunal is satisfied having regard to the interests of justice that it is proportionate to give such a direction.
The Rules were made by the first defendant (the Committee) and allowed by the second defendant pursuant a rule making power afforded by s.22 Tribunal, Courts and Enforcement Act 2007.
The claimant, ILPA, is a professional body of immigration lawyers established in 1984. It challenges the legality of rule 13 and essentially contends that:
i) It is ultra vires as it is beyond the scope of the rule making power in that it interferes with common law principles of fairness without statutory authority.
ii) In the context of issues decided in immigration appeals, the repeal of rule 51 and the creation of a judicial discretion to decide a case on material unknown to the appellant is so unfair that no rational rule making body could have promulgated it.
Section 22 of the Tribunal, Courts and Enforcement Act 2007 provides:
(1) There are to be rules, to be called "Tribunal Procedure Rules", governing-
(a) the practice and procedure to be followed in the First-tier Tribunal, and
(b) the practice and procedure to be followed in the Upper Tribunal.
(2) Tribunal Procedure Rules are to be made by the Tribunal Procedure Committee.
(3) In Schedule 5-
• Part 1 makes further provision about the content of Tribunal Procedure Rules,
• Part 2 makes provision about the membership of the Tribunal Procedure Committee,
• Part 3 makes provision about the making of Tribunal Procedure Rules by the Committee, and
• Part 4 confers power to amend legislation in connection with Tribunal Procedure Rules.
(4) Power to make Tribunal Procedure Rules is to be exercised with a view to securing-
(a) that, in proceedings before the First-tier Tribunal and Upper Tribunal, justice is done,
(b) that the tribunal system is accessible and fair,
(c) that proceedings before the First-tier Tribunal or Upper Tribunal are handled quickly and efficiently,
(d) that the rules are both simple and simply expressed, and
(e) that the rules where appropriate confer on members of the First-tier Tribunal, or Upper Tribunal, responsibility for ensuring that proceedings before the tribunal are handled quickly and efficiently.
(5) In subsection (4)(b) "the tribunal system" means the system for deciding matters within the jurisdiction of the First-tier Tribunal or the Upper Tribunal.
The defendants submit:-
i) The statute gives ample power to make rule 13.
ii) It is a rule reflected in the Tribunal Procedure (Upper Tribunal) Rules 2008 and in the rules made for the other Chambers of the First-tier Tribunal and consistency across chambers is a desirable objective.
iii) The rule is not a mandatory provision that requires a certain procedure to be adopted but is a power to be exercised by trained judges subject to the over-riding objective of fairness.
iv) The test for a challenge to the legality of a procedure rule is not whether the rule may give rise to incidental cases of unfairness, but whether they are inherently or systemically unfair because they lack the capacity to achieve fairness.
This judgment proceeds as follows:-
i) to analyse the terms of rule 13 and what it means;
ii) to review the learning on common law fairness and equivalent provisions in EU and ECHR law;
iii) to examine the authorities relevant to the power to make rules that may lead to derogations from recognised principles of fairness;
iv) to determine the test to apply in a challenge to the rules;
v) to determine the challenge in the light of the above.
Rule 13
Rule 13 is in the following terms:
'(1) The Tribunal may make an order prohibiting the disclosure or publication of—
(a) specified documents or information relating to the proceedings; or
(b) any matter likely to lead members of the public to identify any person whom the Tribunal considers should not be identified.
(2) The Tribunal may give a direction prohibiting the disclosure of a document or information to a person if—
(a) the Tribunal is satisfied that such disclosure would be likely to cause that person or some other person serious harm; and
(b) the Tribunal is satisfied, having regards to the interest of justice, that it is proportionate to give such a direction.
(3) If a party ("the first party") considers that the Tribunal should give a direction under paragraph (2) prohibiting the disclosure of a document or information to another party ("the second party"), the first party must—
(a) exclude the relevant document or information from any documents to be provided to the second party; and
(b) provide to the Tribunal the excluded document or information, and the reason for its exclusion, so that the Tribunal may decide whether the document or information should be disclosed to the second party or should be the subject of a direction under paragraph (2).
(4) The Tribunal must conduct proceedings as appropriate in order to give effect to a direction given under paragraph (2).
(5) If the Tribunal gives a direction under paragraph (2) which prevents disclosure to a party who has appointed a representative, the Tribunal may give a direction that the documents or information be disclosed to that representative if the Tribunal is satisfied that—
(a) disclosure to the representative would be in the interests of the party; and
(b) the representative will act in accordance with paragraph (6).
(6) Documents or information disclosed to a representative in accordance with a direction under paragraph (5) must not be disclosed either directly or indirectly to any other person without the Tribunal's consent.
(7) The Tribunal may, on the application of a party or on its own initiative, give a direction that certain documents or information must or may be disclosed to the Tribunal on the basis that the Tribunal will not disclose such documents or information to other persons, or specified other persons.
(8) A party making an application for a direction under paragraph (7) may withhold the relevant documents or information from other parties until the Tribunal has granted or refused the application.
(9) In a case involving matters relating to national security, the Tribunal must ensure that information is not disclosed contrary to the interests of national security.
(10) The Tribunal must conduct proceedings and record its decision and reasons appropriately so as not to undermine the effect of an order made under paragraph (1), a direction given under paragraph (2), ( 5) or (7) or the duty imposed by paragraph (9).'
Ms Weston for the claimant makes a number of observations as to the consequences of this Rule. In summary she contends:-
i) Sub-rules (2) (3) and (4) permit a closed material procedure (CMP) in which the Tribunal can take into account information that is not disclosed to a party and is not identified during the hearing or the Tribunal's decision. This is contrary to the basic principles of fairness.
ii) Sub-rule (5) does not cure the absence of fairness. An appellant will frequently not be represented at all given the restrictions on legal aid and the fact that many appeals will be conducted when the appellant is outside the country. It is unethical for a legal representative to act on the basis of information he or she cannot discuss with the client. The client cannot give informed consent to such a procedure as he or she will not know the importance of the material that is not to be disclosed.
iii) Sub-rules (7) and (8) creates a second form of CMP unrelated to risk of causing a person serious harm, and with no criteria for so doing;
iv) Sub-rule (9) appears to create a third class of CMP on national security grounds, thereby blurring the...
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