The Lord Chancellor v Detention Action Secretary of State for the Home Department (Interested Party)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeMaster of the Rolls,Lord Justice Briggs,Lord Justice Bean
Judgment Date29 Jul 2015
Neutral Citation[2015] EWCA Civ 840
Docket NumberCase No: C4/2015/2134

[2015] EWCA Civ 840

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE,

ADMINISTRATIVE COURT

Mr Justice Nichol,

CO5882015

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Master of the Rolls

Lord Justice Briggs

and

Lord Justice Bean

Case No: C4/2015/2134

Between:
The Lord Chancellor
Appellant
and
Detention Action
Respondent

and

Secretary of State for the Home Department
Interested Party

James Eadie QC and Oliver Sanders (instructed by Treasury Solicitor) for the Appellant and Interested Party

Nathalie Lieven QC and Charlotte Kilroy (instructed by the Migrant's Law Project) for the Respondent

Hearing dates: 17 July 2015

Master of the Rolls
1

In this litigation, the claimant challenges the legality of the Fast Track Rules 2014 ("FTR") which govern appeals to the First-tier Tribunal (Immigration and Asylum Chamber) ("the FTT") against refusals by the Secretary of State for the Home Department ("SSHD") of asylum applications. By a decision made on 12 June 2015, Nicol J held that the FTR were ultra vires section 22 of the Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act") and he made an order quashing them. In particular, he found that the appellate stage of the system introduced by the FTR was structurally unfair and put appellants seeking to challenge asylum decisions of the SSHD at a serious procedural disadvantage. The Lord Chancellor is named as a defendant because he approved the FTR as the enabling legislation requires.

The legislative framework

2

So far as material, section 22 of the 2007 Act 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.

…..

(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."

3

The procedure to be followed in the Immigration and Asylum Chamber of the FTT is governed by The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, SI No 2604. Two different regimes are created by these Rules. Rules 1 to 46 establish the ordinary procedure. They are referred to in the Schedule itself as "the Principal Rules". The Schedule contains the FTR.

4

FTR rule 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."

5

The places specified in rule 2(3) are Colnbrook House and Harmondsworth Immigration Removal Centres, both of which accommodate men, and Yarl's Wood Immigration Removal Centre, which accommodates women.

6

Rule 5(1) provides that the notice of appeal must be given not later than 2 working days after the day on which notice of the refusal decision is given. Paragraph (2) provides that where a notice of appeal is provided outside the time limit in paragraph (1), the tribunal must not extend the time for appealing unless it considers that it is in the interests of justice to do so.

7

Rule 7 provides that the respondent must, not later than 2 working days after the day on which the tribunal provides the respondent with the notice of appeal, provide various documents to the tribunal.

8

Rule 8 provides that the tribunal must fix a date for the hearing of the appeal which is (a) not later than 3 working days after the day on which the respondent provides the documents under rule 7 or (b) if the tribunal is unable to arrange a hearing within that time, as soon as practicable.

9

Rule 9(1) provides that the tribunal must conclude the hearing of the appeal on the date fixed under the FTR. Paragraph (2) provides inter alia that, where the tribunal postpones or adjourns the hearing under rule 12 or 14(2)(a), the requirement referred to in paragraph (1) ceases.

10

Rule 12 provides:

" Adjournment

Unless the Tribunal makes an order under rule 14, the Tribunal may postpone or adjourn the hearing of the appeal only where the Tribunal is satisfied that—

(a) the appeal could not justly be decided if the hearing were to be concluded on the date fixed under the Fast Track Rules; and

(b) there is an identifiable future date, not more than 10 working days after the date so fixed, upon which the Tribunal can conclude the hearing and justly decide the appeal within the timescales provided for in the Fast Track Rules."

11

Rule 14 provides:

" Transfer out of fast track

(1) Where the Fast Track Rules apply to an appeal or application, the Tribunal must order that the Fast Track Rules shall cease to apply—

(a) if all the parties consent; or

(b) if the Tribunal is satisfied that the case cannot justly be decided within the timescales provided for in the Fast Track Rules.

(2) When making an order under paragraph (1), the Tribunal may, notwithstanding rule 1( 5) or (6) of the Fast Track Rules or the application of the Principal Rules—

(a) postpone or adjourn any hearing of the appeal or application; and

(b) give directions in relation to the conduct of the proceedings."

12

The material differences between the FTR and the Principal Rules including those differences between the Fast Track and ordinary provisions of the Tribunal Procedure (Upper Tribunal) Rules 2008 can be tabulated as follows:

The grounds of appeal

Stage

Fast-track Rules

Principal Rules

Notice of Appeal

Two working days from notice of decision (Schedule, Rule 5)

14 days from notice of decision (2014 Rules, Rule 19)

Service of Respondent's Bundle on FTT

Two working days from service of notice of appeal (Schedule, Rule 7)

28 days from receipt of notice of appeal (2014 Rules, Rule 24)

Hearing of appeal by FTT

Three working days after service of Respondent's Bundle on FTT (Schedule, Rule 8)

No fixed time limits

Adjournments

Maximum of 10 working days permitted (Schedule, Rule 12)

No fixed time limits (2014 Rules, Rule 4(3)(h))

Service of Determination by FTT

Two working days after hearing (Schedule, Rule 10)

No fixed time limits (2014 Rules, Rule 29)

Application to FTT for Permission to appeal to UT

Three working days from service of determination (Schedule, Rule 11)

14 days after service of the determination (2014 Rules, Rule 33)

Renewed application to UT for PTA

Four working days after FTT sends notice of refusal of leave (UT Rules, Rule 21(3)(a)(ii))

14 days after FTT sends notice of refusal of leave (UT Rules, Rule 21(3)(a)(i))

Hearing of appeal by Upper Tribunal

Two working days after permission granted if decision granting permission sent electronically or delivered personally, otherwise five working days. (UT Rules 36A)

No time limits.

Notice of appeal

One day's notice of hearing date. (UT Rules, Rule 36(2)(aa))

At least 14 days notice of hearing date required. (UT Rules, Rule 36(2))

13

By his grounds of appeal, the Lord Chancellor (Supported by the SSHD) contends that the decision of Nicol J was wrong in (i) holding that the SSHD's role in allocating cases to the FTR created an unacceptable risk of unfairness or made an otherwise fair process unfair; (ii) holding that (a) any unfairness was sufficiently serious to be characterised as "structural" and (b) the FTR provisions allowing for adjournments and requiring transfer out of the FTR were not capable of ensuring fairness or sufficiently reducing any risk of unfairness; (iii) failing to consider whether the FTR provisions allowing for adjournments and requiring transfer out of the FTR sufficiently mitigated any perceived disadvantage or unfairness arising out of the SSHD's role in allocating cases to the FTR; and (iv) departing from the decision of Ouseley J in R (Detention Action) v SSHD [2014] EWHC 2245 (Admin) (" DA 1").

14

In his oral submissions, Mr Eadie QC contended for the reasons which I set out in more detail below that the judge was wrong to conclude that the FTR are "structurally unfair" as a result of the "serious procedural disadvantage which comes from the abbreviated timetable and curtailed case management powers together with the imposition of this disadvantage on the appellant by the [SHHD]" (para 60 of the judgment). This is a distillation of the first three grounds of appeal. Mr Eadie did not pursue the fourth ground of appeal.

Background

15

The Detained Fast Track System (DFT) is a system for the quick processing of asylum claims. Individuals are kept in detention pending the determination by the SSHD of their claims and the determination by the FTT or the UT of appeals. It is well established that the prompt and effective determination of asylum claims is in the public interest and to a legitimate government policy objective: see R (L) v SSHD ...

To continue reading

Request your trial
61 cases
  • The Queen (on the application of Kevin Kinyanjui Kiarie) v The Secretary of State for the Home Department
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 13 Octubre 2015
    ...of State, as the respondent to an appeal, to impose a disadvantage on an appellant was rejected by the Master of the Rolls in Lord Chancellor v Detention Action [2015] EWCA Civ 840, at paragraph 48: "It is sufficient for me to say that, if (contrary to my view) the rules themselves are......
  • R (Howard League for Penal Reform and Another) v Lord Chancellor
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 10 Abril 2017
    ...are systemically or inherently unfair by Lord Dyson in R (Detention Action) v First-Tier Tribunal (Immigration and Asylum Chamber) [2015] EWCA Civ. 840, [2015] 1 WLR 5341, to which we refer at [48], [50] and [55] below. (d) What is required in a given context: 39 Although the courts cannot......
  • 1) Abdul Hameed and Another v The Secretary of State for the Home Department
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 5 Julio 2016
    ...a pending decision of the Court of Appeal in the second of the two relevant decisions of the court of Appeal in R (Detention Action) [2015] EWCA Civ 840. Judgment in that latter case was handed down on 29 July 2015. I then asked the parties to prepare and submit written submissions on both ......
  • The Queen (on the application of TN (Vietnam)) v Secretary of State for the Home Department
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 19 Diciembre 2018
    ...stage of appeal was unlawful because it was unfair. 24 In R (Detention Action) v First-tier Tribunal (Immigration and Asylum Chamber) [2015] EWCA Civ 840; [2015] 1 WLR 5341 (“ DA6”), the 2014 Rules were challenged directly. On 29 July 2015, the Court of Appeal dismissed the Lord Chancello......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT