The Queen (on the application of TN (Vietnam)) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Peter Jackson LJ,Lord Justice Singh,Sharp LJ |
| Judgment Date | 19 December 2018 |
| Neutral Citation | [2018] EWCA Civ 2838 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2017/1154 C4/2017/1155 |
| Date | 19 December 2018 |
and
and
[2018] EWCA Civ 2838
Lady Justice Sharp
Lord Justice Peter Jackson
and
Lord Justice Singh
Case No: C4/2017/1154 C4/2017/1155
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Ouseley
Royal Courts of Justice
Strand, London, WC2A 2LL
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)
Mr Robin Tam QC and Ms Natasha Barnes (instructed by the Government Legal Department) for the Secretary of State for the Home Department
Ms Julie Anderson (instructed by the Government Legal Department) for the Lord Chancellor
Hearing dates: 23 – 25 October 2018
Judgment Approved
Introduction
On 9 February 2018, at a joint case management hearing before Singh LJ and Supperstone J, it was ordered that two matters should be heard by a constitution of the Court of Appeal sitting simultaneously as a constitution of the Divisional Court so that both this appeal and the related claim for judicial review could be considered by the same judges.
The first matter, which is the subject of this judgment, is an appeal from Ouseley J's judgment on 20 January 2017 that earlier appeal decisions made by the First-tier Tribunal 1 (“FTT”) under the ( ultra vires) Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 (SI 2005 No. 560) 2 were not automatically nullities, and therefore required an application to be made to set them aside, an application which the relevant court or tribunal would have to determine on the facts of an individual case.
The second matter concerns a claim for judicial review of a decision of the FTT of 30 May 2017 that it did not have jurisdiction to determine the Claimants' applications to set aside earlier appeal decisions made by the FTT under the 2005 Rules. That claim for judicial review is the subject 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).
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 of applicants whose appeals were dealt with under the 2005 Rules during the relevant period (between February 2010 and October 2014) and who have made applications to the FTT to set those appeal determinations aside under Rule 32 of the Tribunal Procedures (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (SI 20144 No. 2604).
TN is a Vietnamese national who initially arrived in the United Kingdom (“UK”) in December 2003, claiming asylum on several occasions before being removed in 2012. She returned to the UK in 2014 and made fresh claims of asylum, alleging that inter alia she had been a victim of trafficking and sexual abuse.
US is a Pakistani national who entered the UK in December 2009 and claimed asylum in 2014 on the grounds of fear for his life if he were returned to Pakistan. His appeal, and TN's, were decided through the Detained Fast Track (“DFT”) process under the 2005 Rules which were declared by Ouseley J to be ultra vires. The Secretary of State has not cross-appealed against the declaration made by Ouseley J that the 2005 Rules were ultra vires. Therefore it is common ground in the present case that they were ultra vires and that starting point forms the foundation for much of the Appellants' argument before this Court.
Material legislation
Section 82(1) of the Nationality, Immigration and Asylum Act 2002 (as amended) provides:
“Where an immigration decision is made in respect of a person he may appeal to the Tribunal.”
Subsection (2) sets out a list of what is meant by a “immigration decision” in this context. It is common ground that it included the adverse decisions made by the Secretary of State against which appeals were made to the FTT in the cases of TN and US.
Section 86 of the 2002 Act sets out the functions of the Tribunal when an appeal is made to it. In essence it must determine the appeal.
Section 106 of the 2002 Act confers power on the Lord Chancellor to make rules regulating the exercise of the right of appeal under section 82 (and other provisions) of the 2002 Act and for prescribing the procedure to be followed in connection with such proceedings. It is common ground that the 2005 Rules were made exercising that power.
The Asylum and Immigration Tribunal (Procedure) Rules ( SI 2005 No. 230) were also made under section 106 of the 2002 Act. They were helpfully referred to by Ouseley J as the “Principal Rules”, to distinguish them from the Fast Track Rules. They contained the following relevant provisions.
Rule 6(1) provided that:
“An appeal to the Tribunal may only be instituted by giving notice of appeal against a relevant decision in accordance with these Rules.”
Rule 8 set out the form and contents required of the notice of appeal.
By virtue of Rule 6 of the Fast Track Rules, these were among the procedural rules in the Principal Rules which applied to fast track appeals as well.
Factual Background
Factual background of TN
The facts of TN's case are summarised in the judgment of Ouseley J at paras. 119–135. The pertinent facts for present purposes are summarised below.
TN was first encountered by the authorities in the UK in December 2003, claiming asylum in January 2004. She absconded and her claim was refused for non-compliance. In various fresh claims and interviews subsequently, including a claim in which she sought asylum based on religious persecution for being Catholic, she stated that she had been working in a nail bar without pay, and that she had no money and passport. She was removed from the UK in 2012, but returned in May 2014. She had a miscarriage in July 2014 shortly before being arrested.
She again claimed asylum, claiming at various points that she had been tortured, and that she feared for her safety for having said “bad things about the government” and for her suspected involvement in a theft. She was placed in the DFT in August 2014. Her claim was rejected and one week later, on 22 August 2014, her appeal was dismissed. It is that earlier appeal decision that she now wishes to have set aside, because she asserts that adverse findings about her credibility that were made in that decision continue to have an impact on her, as the Secretary of State continues to rely on those adverse findings in the context of other decisions in relation to her. I shall have to return to the facts of TN's case in more detail later.
Factual background of US
The facts of US's case are summarised in the judgment of Ouseley J at paras. 152–175. The pertinent facts for present purposes are summarised below.
US entered the UK in December 2009 with leave to remain as a Tier 4 (General) Student. His leave, having been extended to 30 October 2014, was curtailed on 30 March 2014, and he was served with notice of intended removal on 1 April 2014. He claimed asylum, stating at his screening interview that he could not return to Pakistan because his ex-girlfriend's mother was trying to kill him. He was then placed into the DFT process. On multiple occasions he asserted that he was not well, disturbed mentally and could not proceed. He later alleged that he had been severely beaten by members of the group Lashkar-e-Tabha. His application to be removed from the DFT or for additional time, on the grounds that his case was too complex and more time was needed to gather and translate documents, was rejected. His appeal was dismissed by the FTT on 23 May 2014.
Evidence was then placed before the Secretary of State that US had severe psychotic symptoms, trauma-related symptoms and PTSD that were highly compatible with his reported history of traumatic experiences.
Background to this litigation
The procedural history of these cases is summarised in the judgment of Ouseley J at paras. 2–11, but the pertinent aspects are as follows.
The Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 (SI 2005 No. 560) were promulgated in 2005. When the AIT was replaced by the FTT on 15 February 2010 the 2005 Rules continued in force as if they were rules of the FTT. They 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 Schedule to the 2014 Rules contained the new Fast Track Rules (“2014 FTR”), as well as the Principal Rules.
The lawfulness of the operation of the decision-making system in the Detained Fast-Track was considered in R (Detention Action) v Secretary of State for the Home Department [2014] EWHC 2245 (Admin) (“ DA1”). In that case Ouseley J held that the operation of the system up until the stage of appeal was unlawful because it was unfair.
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 Chancellor's appeal against the order of Nicol J of 16 June 2015 in R (Detention Action) v First-tier Tribunal (Immigration and Asylum Chamber) [2015] EWHC 1689 (Admin) (“ DA5”). The 2014 Rules were held to be ultra vires and quashed.
The Court of Appeal in DA6 did not specify the consequences of its decision for those appeals which had already passed through the DFT under the 2014 FTR. However, in Alvi v...
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