The Queen (on the application of TN (Vietnam)) v The Queen (on the application of US (Pakistan))
| Jurisdiction | England & Wales |
| Judge | Peter Jackson LJ,Lord Justice Singh,Sharp LJ |
| Judgment Date | 19 December 2018 |
| Neutral Citation | [2018] EWHC 3546 (Admin) |
| Date | 19 December 2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case Nos: CO/3435/2017 CO/3438/2017 |
[2018] EWHC 3546 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Sharp
Lord Justice Peter Jackson
Lord Justice Singh
Case Nos: CO/3435/2017 CO/3438/2017
and
and
Ms Stephanie Harrison QC and Ms Louise Hooper (instructed by Duncan Lewis) for TN (Vietnam)
Ms Nathalie Lieven QC and Ms Charlotte Kilroy (instructed by Duncan Lewis) for US (Pakistan)
The First-tier Tribunal (Immigration and Asylum Chamber) did not appear and was not represented
Ms Julie Anderson (instructed by the Government Legal Department) for the Lord Chancellor
Mr Robin Tam QC and Ms Natasha Barnes (instructed by the Government Legal Department) for the Secretary of State for the Home Department
Hearing dates: 23–25 October 2018
Judgment Approved
Introduction
These are two claims for judicial review of the decision of the First-tier Tribunal (Immigration and Asylum Chamber) (“FTT”) dated 30 May 2017, in which it held that it had no jurisdiction to determine the Claimants' applications to set aside earlier appeal decisions made by it. Permission to bring these claims for judicial review was granted by Supperstone J. Although there are two claims before the Court they both raise the same legal issues, the principal issue being whether the FTT has jurisdiction to consider applications to set aside an earlier appeal decision in cases such as these.
On 20 February 2018, after a joint case management hearing, Singh LJ and Supperstone J directed that these claims should be heard by a Divisional Court consisting of the same members of the Court of Appeal who would be hearing the appeals in the related case of R (TN and US) v Secretary of State for the Home Department [2018] EWCA Civ 2838. The background is more fully set out in the judgments of the Court of Appeal in that case, which was an appeal from the decision of Ouseley J [2017] EWHC 59 (Admin); [2017] 1 WLR 2595.
In his judgment in TN and US Ouseley J held that the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 (SI 2005 No. 560) were ultra vires (I will refer to these simply as “the 2005 Rules” unless it is necessary to distinguish them from other rules, in which case I will refer to them as “the Fast Track Rules”). He also held that an application would then have to be made to set aside an appeal decision which had previously been made by the FTT under the 2005 Rules.
Ouseley J proceeded on the assumption that it would be the FTT which would be the suitable forum in which any applications to set aside earlier appeal decisions could and should be made: see paras. 96–101 of his judgment. However, he added a postscript, at para. 102, to the effect that, although he had assumed that this was accepted by the Secretary of State and the Lord Chancellor, it seemed that that was not necessarily the case. He recorded that, in submissions made on their behalf by counsel before him, the position had been left “open.”
In due course the Secretary of State made submissions before the FTT that in fact it did not have jurisdiction to determine such applications to set aside appeal decisions which had been made under the 2005 Rules. The FTT accepted those submissions in its determination of 30 May 2017 and it is that which has led to the present proceedings for judicial review.
Material legislation
The relevant primary legislation is contained in the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”).
Section 9, so far as material provides:
“(1) The First-tier Tribunal may review a decision made by it on a matter in a case, other than a decision that is an excluded decision for the purposes of section 11(1) (but see subsection (9)).
(2) The First-tier Tribunal's power under subsection (1) in relation to a decision is exercisable –
(a) of its own initiative, or
(b) on application by a person who for the purposes of section 11(2) has a right of appeal in respect of the decision.
(3) Tribunal Procedure Rules may –
(a) provide that the First-tier Tribunal may not under subsection (1) review (whether of its own initiative or on application under subsection (2)(b)) a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules;
(b) provide that the First-tier Tribunal's power under subsection (1) to review a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules is exercisable only of the Tribunal's own initiative;
(c) provide that an application under subsection (2)(b) that is of a description specified for the purposes of this paragraph in Tribunal Procedure Rules may be made only on grounds specified for the purposes of this paragraph in Tribunal Procedure Rules;
(d) provide, in relation to a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules, that the First-tier Tribunal's power under subsection (1) to review the decision of its own initiative is exercisable only on grounds specified for the purposes of this paragraph in Tribunal Procedure Rules.”
Section 22 confers a power on the Tribunal Procedure Committee to make Tribunal Procedure Rules for the FTT and the Upper Tribunal (“UT”).
Para. 15 of Sch. 5 to the 2007 Act, so far as material provides:
“(1) Rules may make provision for the correction of accidental errors in a decision or record of a decision.
(2) Rules may make provision for the setting aside of a decision in proceedings before the First-tier Tribunal or Upper Tribunal –
(a) where a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party to the proceedings or a party's representative,
(b) where a document relating to the proceedings was not sent to the First-tier Tribunal or Upper Tribunal at an appropriate time,
(c) where a party to the proceedings, or a party's representative, was not present at a hearing related to the proceedings, or
(d) where there has been any other procedural irregularity in the proceedings.”
The relevant secondary legislation is to be found in the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (SI 2014 No. 2604) (“the 2014 Rules”). The 2014 Rules came into force on 20 October 2014.
Rule 4 of the 2014 Rules, which is headed “Case management powers”, provides that, subject to the provisions of the 2007 Act and any other enactment, the Tribunal may regulate its own procedure: see para. (1). Para. (3) provides that in particular, and without restricting the general powers in paras. (1) and (2), the Tribunal may (a) extend or shorten the time for complying with any rule, practice direction or direction.
Rule 32 of the 2014 Rules provides as follows:
“(1) The Tribunal may set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision, or the relevant part of it, if –
(a) the Tribunal considers that it is in the interests of justice to do so; and,
(b) one or more of the conditions in paragraph (2) are satisfied.
(2) The conditions are –
(a) a document relating to the proceedings was not provided to, or was not received at an appropriate time by, a party or a party's representative;
(b) a document relating to the proceedings was not provided to the Tribunal at an appropriate time;
(c) a party, or a party's representative, was not present at a hearing related to the proceedings; or
(d) there has been some other procedural irregularity in the proceedings.”
Rule 33 provides that:
“(1) A party seeking permission to appeal to the Upper Tribunal must make a written application to the Tribunal for permission to appeal.”
Rule 34 provides that:
“(1) On receiving an application for permission to appeal the Tribunal must first consider whether to review the decision in accordance with Rule 35.”
Rule 35 provides that:
“(1) The Tribunal may only undertake a review of a decision –
(a) pursuant to Rule 34 (review on an application for permission to appeal); and
(b) if it is satisfied that there was an error of law in the decision.”
Rule 36 provides that the Tribunal may treat an application for a decision to be corrected, set aside or reviewed, or for permission to appeal against a decision, as an application for any other one of those things.
Rule 46, which is headed “transitional provisions”, provides that:
“(1) The Tribunal may give any direction to ensure that proceedings are dealt with fairly and, in particular, may –
(a) apply any provision of the Asylum and Immigration Tribunal (Procedure) Rules 2005 or the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 which applied to the proceedings immediately before the date these Rules came into force; or
(b) disapply provisions of those Rules (including the fast track rules).
…”
At the risk of stating the obvious, it should be noted that the 2005 Rules were not made under the 2007 Act since they pre-dated that Act. Indeed, at that time and until 2010, the present appellate structure, which comprises the FTT and the Upper Tribunal (Immigration and Asylum Chamber), did not exist. At that time the relevant body was the Asylum and Immigration Tribunal (“AIT”).
In 2010 (under powers conferred by sections 30 and 31 of the 2007 Act) the functions of the AIT were transferred to the FTT: see the Transfer of Functions of the Asylum and Immigration Tribunal Order 2010 ( SI 2010 No. 21) (“the 2010 Order”), Article 2. The 2010 Order came into force on 15 February...
To continue reading
Request your trial
-
R PN (Uganda) v Secretary of State for the Home Department
...Jackson and Singh LJJ) sat as a Divisional Court in R(TN (Vietnam)) v First-tier Tribunal (Immigration and Asylum Chamber) and another [2018] EWHC 3546; [2019] 1 WLR 2675 and in another judgment dated 19 December 2018 held that the FTT did not have power to set aside earlier determinations......
-
PN v The Secretary of State for the Home Department
...were dealt with and judgment given by the Court of Appeal and the Divisional Court on 19 December 2018: see [2019] 1 W.L.R. 2647 and [2019] 1 W.L.R. 2675. 55 By an application notice dated 7 January 2019, the claimant's solicitors applied for an order that the substantive hearing of the c......
-
The Queen (on the application of TN (Vietnam)) v Secretary of State for the Home Department
...of separate judgments by this Court sitting as a Divisional Court, handed down at the same time as the judgments in this case: [2018] EWHC 3546 (Admin). 4 These cases are brought by the Appellants TN and US and have been selected to act as the lead (but not test) cases for a larger number ......
-
Abdul Mateen Omar Ali v The Home Office
...applications, a decision upheld by the Divisional Court in R (TN (Vietnam) v First-tier Tribunal (Immigration and Asylum Chamber) [2018] EWHC 3546 (Admin); [2019] 1 WLR 2675, due to the absence of an equivalent to Rule 32 of the principal FTT Rules 2014 in the earlier version of the princ......