The Lord Chancellor v Detention Action

Tribunal procedure rules made under section 22(4) of the Tribunals, Courts and Enforcement Act 2007 must secure justice and fairness. Speed and efficiency are legitimate objectives, but cannot override a fair opportunity to present an asylum appeal.

A system is unlawful where, considered in the round, its inherent features create an unacceptable risk that appellants will be denied that opportunity. Tight time limits may be saved by effective flexibility, but adjournment and transfer powers will not cure unfairness if their operation leaves appellants unable to obtain evidence or exposes them to prejudice when seeking extra time.

The respondent challenged the Fast Track Rules 2014, which applied to appeals by certain detained asylum seekers to the First-tier Tribunal. The Rules required an appeal to be prepared and heard on a highly expedited timetable.

Nicol J in the Administrative Court held that the Rules were ultra vires section 22 of the Tribunals, Courts and Enforcement Act 2007 because they were structurally unfair, and quashed them. The Lord Chancellor appealed, supported by the Secretary of State for the Home Department.

The central issue was whether the Rules' powers to adjourn a hearing or to transfer a case out of the fast-track process sufficiently protected an appellant's ability to present an asylum appeal fairly and justly.

1. Appeal dismissed. The Master of the Rolls, with whom Briggs LJ and Bean LJ agreed, held that the Fast Track Rules 2014 were systemically unfair and unjust. They were therefore ultra vires section 22(4) of the Tribunals, Courts and Enforcement Act 2007.

2. The statutory objectives of justice, fairness, speed and efficiency had to be read together. Justice and fairness were paramount. The court adopted the approach in R (Refugee Legal Centre) v Secretary of State for the Home Department [2004] EWCA Civ 1481: a system must be considered as a whole and is unlawful only where unfairness is inherent rather than confined to aberrant individual cases. In asylum appeals, however, only the highest standards of fairness suffice.

3. The seven-day timetable gave a significant number of detained appellants no fair opportunity to present their cases. Legal representatives had to obtain instructions in detention, prepare evidence and statements, arrange translation and expert evidence, and address adverse credibility findings. The tribunal's independence, expertise, the overriding objective and ordinary legal representation did not overcome that inherent difficulty.

4. Rule 12 had only a limited role because an adjourned hearing had to occur within ten working days. Rule 14 was not an effective cure. An appellant might be unable to demonstrate, within the available time, that further enquiries would produce material evidence. An application made at the substantive hearing also forced the appellant to expose gaps in the evidence while remaining ready to proceed if transfer were refused. The fast-track timetable created momentum towards proceeding with the hearing.

5. It was unnecessary to decide whether the Secretary of State's role in placing a case in the fast-track process independently breached natural justice. If the Rules had themselves been fair, that allocation decision would not have impeded a fair hearing. The court left it to the Tribunal Procedure Committee and Parliament to devise a lawful, faster scheme consistent with fairness and justice.

• Court of Appeal (Civil Division): The Lord Chancellor's appeal was dismissed. The order quashing the Fast Track Rules 2014 was upheld.

• High Court, Administrative Court: On 12 June 2015, Nicol J held that the Rules were ultra vires section 22 of the Tribunals, Courts and Enforcement Act 2007 and quashed them. No citation for that decision was stated in the judgment.