R TN (Vietnam) (1st Claimant) on the application of US (Pakistan) (2nd Claimant) v Secretary of State for the Home Department The Lord Chancellor (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley,US |
| Judgment Date | 20 January 2017 |
| Neutral Citation | [2017] EWHC 59 (Admin) |
| Docket Number | Case No: CO/5779/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 January 2017 |
and
[2017] EWHC 59 (Admin)
The Hon. Mr Justice Ouseley
Case No: CO/5779/2015
CO/4104/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Nathalie Lieven QC, Ms Charlotte Kilroy (instructed by Messrs Duncan Lewis) for the First Claimant
Ms Stephanie Harrison QC and Ms Louise Hooper (instructed by Messrs Duncan Lewis) for the Second Claimant
Mr Robin Tam QC, Ms Natasha Barnes, Ms Belinda McRae (instructed by the Government Legal Department) for the First Defendant
Ms Julie Anderson (instructed by the Government Legal Department) for the Second Defendant
Hearing dates: 11–14 October 2016
Judgment Approved
These two challenges represent a further round in the contests over the lawfulness of aspects of the detained fast track system for the determination of asylum claims and appeals.
I set out part of the earlier history in paragraphs 25–37 of my judgment in Detention Action v Secretary of State for the Home Department [2014] EWHC 2245, referred to in these proceedings as DA1. DA2 is my judgment on consequential orders. The earliest cases had been concerned with the lawfulness of detention for fast track decisions on asylum claims by the Secretary of State for the Home Department, SSHD. The appeal system was not then involved. Its introduction to the DFT is described in paragraphs 53–54 of DA1. The Immigration and Asylum Appeals (Fast Track Procedure) Rules 2003 were introduced.
The fairness of the DFT decision-making system was considered in R (Refugee Legal Centre) v SSHD [2004] EWCA Civ 1481, [2005] 1 WLR 2219, but the appeal process was only considered in the context of whether it could correct failings which occurred before the SSHD's adverse decision on the asylum claim. The lawfulness of those Rules was not challenged.
Next, the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 SI 2005 No 560 were promulgated, the 2005 FTR. These covered appeals, and remained in force until 20 October 2014 when the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 SI 2014 No.2604, the 2014 Rules came into force. The new Fast Track Rules, the 2014 FTR, were in the Schedule to the 2014 Rules, which also contained the Principal Rules,.
DA1 concerned a challenge to the lawfulness of the operation of the initial decision-making system in the detained fast track. The 2005 FTR were not the subject of that challenge, and were not directly argued to be unfair or unlawful. I found that the operation of the system up to the start of the appeal stage was unlawful, because unfair, in a number of respects.
The 2014 FTR, however, were the subject of direct challenge by Detention Action in R (Detention Action) v First-tier and Upper Tribunals (Immigration and Asylum Chambers), Lord Chancellor and SSHD [2015] EWCA Civ 840, [2015] 1 WLR 5341, DA6, as it was called before me. On 29 July 2015, the Court of Appeal dismissed the Lord Chancellor's appeal against the Order of Nicol J dated 16 June 2015 in DA5, [2015] EWHC 1689 (Admin) declaring that the 2014 FTR and related Tribunal Procedure (Upper Tribunal) Procedure Rules 2008 were ultra vires. They were quashed. Permission to appeal to the Supreme Court was refused.
The Court of Appeal did not specify any consequences which were to follow for appeals which had already passed through that process under the 2014 FTR. The upshot however was that Mr Clements, President of the First-tier Tribunal, decided in Alvi and others v SSHD on 4 August 2015, after hearing some argument, that judicial review applications in the FtT to quash decisions reached under the 2014 FTR were better dealt with by the alternative remedy of setting aside the decisions under Rule 32 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. Rule 32 empowers the FtT to set aside and remake a decision if it considers that to be "in the interests of justice" where "there has been some other procedural irregularity", e.g. other than documents not being sent or a party not being present. Hearing appeals under ultra vires rules constituted the procedural irregularity. Mr Clements added simply that it was in the interests of justice for such decisions to be set aside, a conclusion he reached without further reason or qualification. He set them aside of his own motion and so the time limit for an application (14 days from notice of the decision for someone in the UK and 28 days for someone outside the UK) did not apply. The appeals were then treated as pending. The SSHD, he said, could apply to take advantage of R32, if so minded.
The practice of the FtT now in relation to decisions made under the 2014 FTR is that an application to set them aside is required, but that the decisions are then set aside of the FtT's own motion: the FtT President has drafted a standard form letter for applicants who seek to have their appeal decisions set aside, saying that their FtT decision was made under the 2014 FTR, and inviting him of his own motion to set aside the Tribunal's decision under R32. So the time limit in R32 is not applied to prevent the application succeeding. Nor is any information required about any unfairness in fact in the determination of the individual appeal. It also appears that removal from the UK, after dismissal of an appeal, has not prevented appeal decisions being set aside.
A standard Home Office letter of September 2015, referring to the President's draft letter, gave appellants 14 days to notify it that an application had been made, after which, in the absence of such an application, removal steps would be taken. It invited those who had brought judicial review proceedings based on the unlawfulness of the 2014 FTR to use R32 instead. Mr Tam QC for the SSHD explained that the SSHD had not taken issue with the FtT President's ruling for essentially practical reasons related to the number of appeals affected, and their comparative recentness, though the SSHD had concerns about it.
However, the decision in DA6 led to challenges to the 2005 Fast Track Rules. On 11 January 2016, Mr Clements promulgated a ruling that 50 applications to set aside decisions reached under the 2005 FTR should be adjourned while the Administrative Court ruled on the lawfulness or otherwise of the 2005 FTR. Both Claimants are among the applicants to the FtT. One factor was that the FtT, unlike the Administrative Court, could make no general declaration that the FTR were ultra vires, but would have to rule on the lawfulness of the Rules by way of individual applications.
The resolution of the vires of the 2005 FTR was ordered by Cranston J on 14 June 2016 in the context of these two claims, as lead but not test cases. There isa large number of claims raising the same issue.
I add that the vires of the 2003 FTR are also now being raised, but in other proceedings.
Were the 2005 Fast Track Rules ultra vires?
This argument arises as a result of the decision in DA6. The Claimants say that it follows from that decision, which is binding on me, that the 2005 FTR are equally ultra vires. The Defendants say that the decision is not strictly binding and I should not follow it. I start with DA6.
The 2014 FTR were made under s22 of the 2007 Tribunals, Courts and Enforcement Act, empowering Tribunal Procedure Rules to be made, so far as material "with a view to securing (a) that in proceedings before the First-tier Tribunal and Upper Tribunal, justice is done", that the system is accessible and fair, and that proceedings are handled quickly and efficiently.
Lord Dyson MR, with whom Briggs and Bean LJJ agreed, held at [8] that the legality of the FTR had to be judged by reference to that empowering provision, noting the possible tension between the need for fairness and accessibility, and speed and efficiency. He adopted generally the principles proposed by Mr Eadie QC for the SSHD for determining whether a system for challenging adverse decisions was so unfair as to be unlawful, carrying an unacceptable risk of unfairness to asylum seekers; [27]. He concluded that "the timetable for the conduct of these appeals is so tight that it is inevitable that a significant number of appellants will be denied a fair opportunity to present their cases under the FTR regime." [38F]. He rejected the argument that there were adequate safeguards against that in Rule 12 of the 2014 FTR, empowering adjournment for up to 10 days if justice required and, more importantly, Rule 14, which required the appeal to be dealt with by the Principal Rules and not the FTR, if the Tribunal were satisfied that the appeal could not be determined justly within the FTR timescales. The correct balance had not been struck in the 2014 FTR.
Lord Dyson said in summary:
"45. To summarise, in my view the time limits are so tight as to make it impossible for there to be a fair hearing of appeals in a significant number of cases. For the reasons that I have given, the safeguards on which the SSHD and the Lord Chancellor rely do not provide a sufficient answer. The system is therefore structurally unfair and unjust. The scheme does not adequately take account of the complexity and difficult of many asylum appeals, the gravity of the issues that are raised by them and the measure of the task that faces legal representatives in taking instructions from their clients who are in detention. It seems to me that some relaxation of the time limits is necessary, but it is not for the court to prescribe what is required to remedy the problem. A...
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