The Lord Chancellor v Detention Action Secretary of State for the Home Department (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Master of the Rolls,Lord Justice Briggs,Lord Justice Bean |
| Judgment Date | 29 July 2015 |
| Neutral Citation | [2015] EWCA Civ 840 |
| Docket Number | Case No: C4/2015/2134 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 July 2015 |
and
[2015] EWCA Civ 840
The Master of the Rolls
Lord Justice Briggs
and
Lord Justice Bean
Case No: C4/2015/2134
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
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
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
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."
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.
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."
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.
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.
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.
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.
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.
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."
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."
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)) |
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").
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
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 ...
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