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Introduction

Next week, the Supreme Court will hear an appeal on behalf of TN, a Vietnamese national, whose adverse asylum appeal was decided under the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 (“the 2005 Rules”) which were subsequently held to be ultra vires.

The Supreme Court will consider three issues. First, whether individual appeal decisions taken under the 2005 Rules are automatically a nullity. Secondly, if they are not a nullity, what is the correct approach to take when considering applications to quash or set aside appeal decisions made under the 2005 Rules. Thirdly, whether there was any procedural unfairness on the facts of TN’s case.

Background

TN arrived in the UK in December 2003 and claimed asylum on several occasions before being removed to Vietnam in 2012. She subsequently returned to the UK in 2014 and made fresh claims of asylum which were rejected by the Home Office on 14 August 2014. TN’s appeal to the First-tier Tribunal (“FTT”), dealt with under the 2005 Rules, had been dismissed.

TN’s case follows a series of challenges to the lawfulness and fairness of the Home Office’s fast-track system for determining asylum claims and appeals. In R (Detention Action) v First-tier Tribunal (Immigration and Asylum Chamber) [2015] EWCA Civ 840, the Court of Appeal declared that the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (“the 2014 Rules”) (which were materially identical to the 2005 Rules) were ultra vires. In light of that decision, TN brought judicial review proceedings in respect of the 2005 Rules.

At first instance, Ouseley J declared that the 2005 Rules were ultra vires, there being no material difference between them and the 2014 Rules (following the decision in Detention Action).[1] As to the consequence of that declaration, Ouseley J decided that it did not automatically nullify individual appeal decisions made under the 2005 Rules. Those decisions remained valid until set aside or quashed. Further, Ouseley J held that their quashing would depend on the facts as to unfairness and their setting aside would depend on the interests of justice. Accordingly, there was no presumption of procedural unfairness nor was he able to find any procedural unfairness on the individual facts in TN.

The Court of Appeal decision

TN appealed Ouseley J’s decision. There was a conjoined appeal before the Court of Appeal (along with US, a Pakistani national who also had his asylum appeal decided under the 2005 Rules).[2] Singh LJ, giving the lead judgment, (with whom Sharp LJ and Peter Jackson LJ agreed) dismissed TN’s appeal, upholding Ouseley J’s decision at first instance.

Automatic nullity?

As to whether individual appeal decisions made under the 2005 Rules were automatically a nullity, Singh LJ noted that “there is a conceptual distinction between holding that the [2005] Rules were ultra vires and the question whether the procedure in an individual appeal decision was unfair” [§83]. Singh LJ explained that in order to challenge the entire system of such rules, “it is not necessary to show that the rules will lead to unfairness in every case. Rather it is the creation by the rules of an “unacceptable risk” of unfairness which founds the ability of the Court to strike them down” [§84]. He concluded that although the 2005 Rules were ultra vires it did not necessarily mean that “the conclusion in each and every case decided pursuant to the [2005 Rules], a particular decision was itself procedurally unfair” [§85]. Accordingly, such decisions were not automatically a nullity.

Correct approach to applications to set aside an earlier appeal decision under the 2005 Rules

As to the approach a future court should take to applications to set aside earlier appeal decisions made under the 2005 Rules, Singh LJ made it clear at §103 that in deciding applications the court ought to have regard to the following: (1) a high degree of fairness is required in this context, (2) the 2005 Rules created an unacceptable risk of unfairness in a significant number of cases of which this may be one of those cases, (3) there is no presumption of unfairness, a causal link is required between the risk of unfairness created by the 2005 Rules and the facts, and (4) finality of litigation is important.

The Court of Appeal found that Ouseley J was correct to hold that there had been no procedural unfairness on the facts of TN’s case.

Conclusion

The case is important for three reasons. First, it should (hopefully) provide much needed certainty to those individuals who had adverse asylum appeals decided under the 2005 Rules. Secondly, it raises fundamental issues regarding the reach of the ultra vires doctrine to appeal decisions made under unlawful procedural rules and the concept of “nullity”. Thirdly, it will be interesting to see how the court grapples with the potentially competing principles of procedural fairness and the need for finality in litigation.

The decision will, no doubt, be eagerly awaited by immigration practitioners and public lawyers alike.

The appeal will be heard on 30 November and 1 December 2020.

Lucinda Cunningham is a trainee at Matrix Chambers

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[1] [2017] EWHC 59 (Admin).

[2] [2018] EWCA Civ 2838.