UK - Detention Action (Claimant) v First Tier Tribunal (Immigration and Asylum Chamber) (2) Upper Tribunal (Immigration and Asylum Chamber), (3) Lord Chancellor v (Respondent) and the Secretary of State for the Home Department (Interested Party)

Facts:

The claimant, Detention Action, sought to quash the operation of the Detained Fast Track System on account of its illegality. The claimant applied to the High Court seeking  judicial review of the DFT system on two grounds; the first is that the Fast Track Rules, which establishes the Fast Track appeal procedure and are part of the First Tier Tribunal Procedure rules, are ultra vires, i.e. beyond the power to make procedural rules which Parliament has conferred, and the second is one based on rationality, explained below.

The Claimant brought a previous action in 2013 against the SSHD in relation to DFT, which was unsuccessful. Following appeal, the Court of Appeal held that the SSHD’s criteria for determining which cases were suitable for fast-tracking, after the refusal of asylum and pending appeal, were not objectionable in principle but lacked the requisite clarity and transparency. On this basis, the Claimant’s second ground is that the only rational and lawful response of the FTT and the UT would have been to treat all asylum appeals as subject to the Principal Rules and not the FTR. 

Decision & reasoning:

Lord Nicol began his judgment by setting out the applicable law and procedure to the dispute at hand. He explained that there are two regimes created by the ‘FTT Procedure Rules’. One regime relates to the Principal Rules (established by Rules 1-46), the second relates to the Fast Track Rules (FTR) established within the schedule). All of those in the FTR system are detained. Appellants whose appeals are subject to the FTR had their applications for asylum determined by the SSHD in a process known as Detained Fast Track – ‘DFT’.

Those subject to the FTR are subject to truncated time limits with regards to notice of appeal before the FTT  as well as defined time limits of the hearing and decision.

In order for the FTR to be vires and thus lawful, they must conform with the requirements of Section 22(4)(a)-(e) of the Tribunals Courts and Enforcement Act 2007. This provision requires the procedures of a tribunal to be fair, accessible, handled quickly and efficiently, be simple and simply expressed, and for the members of the tribunal to ensure procedures are handled quickly and efficiently.

Lord Nicol noted that the shorter timescales and restricted case management powers make it, in practice, very difficult to appeal. He also noted  that the most important qualification for appeals to be treated under fast track is that they can be dealt with fairly, citing s.22(4) of the 2007 Act that “the tribunal system is accessible and fair.”

He noted the submission of the defendant, notably that Schedule 5 paragraph 19 allowed the Tribunal Procedure Committee  to make different rules for different purposes and this would permit different rules to be applied in different circumstances even by the same Chamber of the FTT or Upper Tribunal (UT).

Furthermore, Lord Nicol observed that the FTR applies to those detained at a particular centre. As the Secretary of State for the Home Department (SSHD) determines whether the appellant should be detained (and, in the case of men, where they should be detained) in effect the SSHD determines whether the FTR should apply to a particular case. He cited the claimant’s submission that it cannot be right that one party to the appeal (the SSHD) is able to determine that the opponent in litigation (the appellant) should be subjected to that disadvantage.

Lord Nicol stated the Rules will not be valid and within the enabling provision if they have structural unfairness built into them and he cited several cases where justices spoke of fairness and due process including Refugee Legal Centre where Sedley LJ spoke of an “irreducible minimum of due process” and this level of fairness cannot be sacrificed “on the altar of speed and convenience”.

Lord Nicol noted that unlike the previous action the Claimant brought, this appeal focused on the legality of the rules and that he concluded the FTR cannot withstand the attack on their legality. He said he did not think that the Tribunal Procedural Rules enacted by the Tribunals Courts and Enforcement Act 2007  was a parliamentary endorsement of continuation of the FTR beyond a transitional period. He concluded that appellants are at a serious procedural disadvantage and therefore the rules are ultra vires.

Lord Nicol found that the Tribunal Procedure (First-Tier Tribunal) (Immigration and Asylum Chamber) Rules (‘FTR’), which set out the procedure for an appeal against a refusal of asylum under DFT, was ultra vires section 22 of the Tribunals, Courts and Enforcement Act 2007 (‘2007 Act’) and thus had to be quashed. Lord Nicol found that the procedure was ‘structurally unfair’ and put the applicant at a ‘serious procedural disadvantage’. This was mainly due to the abbreviated timetable and the curtailed case management powers.

Lord Nicol concluded that the system created an unacceptably high risk of unfairness,  and that the safeguards of adjournments and requesting transfer out of the FTR were unsatisfactory and unfair. 

Lord Nicol stated that the UT defines a fast track appeal by reference to what happened in the FTT. He said that if the FTR are ultra vires the provisions in the Upper Tribunal Rules, which rely upon the same, must also be ultra vires. As Lord Nicol accepted the Claimant’s first ground of legality he did not need to consider the rationality challenge.

Outcome:

Claim succeeded.

Subsequent proceedings:

The Government later appealed this judgment to the Court of Appeal  who subsequently upheld the High Court’s judgment and reaffirmed that the procedural rules governing an appeal against a negative decision on asylum conducted under the Detained Fast Track (DFT) system are ultra vires and thus unlawful.

The Government confirmed that it would appeal this judgment to the Supreme Court, however on the 12th November 2015 the Supreme Court refused the Government permission to appeal against the Court of Appeal's judgement. As the Government has no further right of appeal, the Court of Appeal's ruling is definitive.

The DFT system has been suspended since 2 July 2015.

Observations/comments:

This case summary was written by Linklaters LLP.