Detention Action v First-Tier Tribunal (Immigration and Asylum Chamber) & Ors  EWCH 1689 (Admin)
The High Court of England and Wales has found that the “Fast Track” appeal process, which imposed extremely short timelines for hearing appeals against asylum seeker application decisions, was ultra vires, or beyond power, as a result of structural unfairness.
When an asylum application is refused by the Secretary of State for the Home Department (‘the SSHD’), there is generally a right of appeal to the First-Tier Tribunal (Immigration and Asylum Chamber) (‘the FTT’). Decisions by the FTT can be appealed on a point of law to the Upper Tribunal (Immigration and Asylum Chamber) (‘the UT’).
There are essentially two procedural regimes governing appeals to the FTT and the UT. The first procedural regime is known as ‘the Principal Rules’ and the second regime is referred to as ‘the Fast Track Rules’ (‘the FTR’), which establishes ‘the Fast Track appeals’ process. Appellants whose appeals are subject to the FTR had their asylum applications determined by the SSHD in a process known as Detained Fast Track (‘DFT’), as all applicants subjected to DFT are detained. Those appellants subject to the FTR are also detained for the duration of their appeals.
The primary differences between the Principal Rules and the FTR are the much shorter time limits and more restrictive case management powers for the Tribunals. Shorter time limits included 2 working days to lodge a notice of appeal rather than 14 days, 2 working days rather than 28 days to provide any statement of evidence or record of interview relied upon by the Respondent and 3 working days rather than an unspecified time for the appeal to be heard by FTT. In practice, that meant that an appeal would normally be heard within 7 working days of the decision against which the appeal is brought. The more restricted case management powers severely curtailed the Tribunal’s ability to extend or shorten the time for complying with a rule, practice direction or direction, and presumed that all hearings would conclude the same day.
The claimant is Detention Action, a charity set up in 1993 that campaigns on issues relevant to immigration detention. The claimant brought proceedings to the Queen’s Bench Division of the High Court of Justice, arguing that the procedural regime created by the FTR imposes such short deadlines, and curtails the FTT’s case management powers to such an extent, that justice cannot be done. The claimant also argued that significant procedural disadvantage to one party to adversarial litigation, the asylum seeker, was the consequence of a decision by the other party in that litigation, the SSHD. As a result, argued the claimant, the FTR are ultra vires because they do not comply with the requirements of section 22 of the Tribunals Courts and Enforcement Act 2007 (‘the 2007 Act’), which is the enabling legislation for both the Principal Rules and the FTR.
The claimant further argued that the FTR involved improper delegation to one party to the appeal, and that the FTR were contrary to the independence of the Tribunal judiciary.
Justice Nicol held that the FTR impinged on a minimum level of fairness, and were therefore ultra vires. He dismissed the claimant’s arguments in relation to delegation and judicial independence, holding that the FTR could neither be characterised as a delegation of power nor as an example of actual or apparent bias.
In finding that the FTR were ultra vires, Nicol J set out the proper interpretation of the enabling legislation. Section 22(4) of the 2007 Act stipulates that Tribunal Procedure Rules should be made with a view to ensuring that (a) justice is done; (b) the tribunal system is accessible and fair; and (c) proceedings are handled quickly and efficiently. Accordingly, Nicol J held that it is clearly possible to make a different set of rules for a particularly category of appeals in the interests of dealing with the appeals in a quick and efficient manner. However, any separate set of rules must still be just, accessible and fair. Moreover, Nicol J held that “the objectives are not all of equal status…that justice be done, ought to have an element of priority” [56, iii]. He further held that the justice and fairness objectives contained in s. 22(4) did not mean that any rules that could be unfair or unjust would be ultra vires. Instead, the FTR would only be ultra vires if “they have structural unfairness built into them” [56, v].
On the facts, Nicol J accepted that the FTR resulted in reduced costs to the SSHD and the Tribunal system. However, he also found that the FTR incorporated structural unfairness, as a result of:
- The appellant’s serious procedural disadvantage, as evidenced by the amount and kind of tasks a representative of the appellant would have to accomplish in the 7 working days before a hearing before the FTT ;
- The fact that the appellant is detained throughout the appeal process, leading to significant difficulties in preparing for the hearing ;
- The need to simultaneously prepare an application for taking the application out of the Fast Track appeals and the substantive appeal itself [58-59];
- The FTT’s power to adjourn or take the appeal out of Fast Track are very limited and insufficient to ensure that justice would be done [60-62].
Nicol J ordered that the Fast Track appeal process be quashed, but granted a stay on that order taking effect to allow the Lord Chancellor and SSHD time to appeal his decision. Fast Track appeals will therefore continue to be heard until the appeal is heard.
Although some aspects of the asylum application and appeals process have been successfully challenged in the past, the significance of this case is that, in Nicol J’s words, “This is the first time that the legality of the Fast Track Rules (whether in their current form or earlier versions) has been considered” . In a previous High Court decision, Detention Action v SSHD, Justice Ouseley had found that certain aspects of the SSHD’s DFT were unlawful, but did not accept the broader attack on the Fast Track appeals process. The present case therefore sets out for the first time, in the asylum application appeal context, the limits to which justice and fairness can be curtailed in the interests of efficiency.
This may have implications on the Fast Track Assessment and Removal (‘FTAR’) process for asylum seekers in Australia that has recently come into effect. The FTAR is explicitly modelled on the UK DFT system, which has already been found to carry an unacceptably high risk of unfairness because of the limitations on access to legal advice and representation. The High Court has also found that detention pending appeal did not meet the requirements of clarity and transparency, and could not be justified (see R (Detention Action) v SSHD  EWCA Civ 1634). The present case further confirms the risk of structural unfairness in fast tracking not only initial asylum claim assessments but the appeals process as well.
The full text of the decision can be found here.
André Dao is the editor-at-large of Right Now, a human rights media organisation.