Detention Action v First-Tier Tribunal (Immigration and Asylum Chamber) & Ors

Procedural rules may create an expedited regime for a defined class of appeals, but only where cases can be dealt with fairly. Under Tribunals, Courts and Enforcement Act 2007, the objective that justice be done has priority over speed and efficiency. Rules are unlawful where they build structural unfairness into the process, including a serious procedural disadvantage caused by an abbreviated timetable and restricted case-management powers, without sufficient judicial supervision. In asylum appeals, only the highest standards of fairness will suffice. A power to adjourn for a short period or transfer a case out of the fast track at the substantive hearing does not cure a system which makes it materially difficult to prepare that application while also preparing the appeal itself.

The claimant charity challenged the legality of the Fast Track Rules governing detained asylum appeals before the First-tier Tribunal. It argued that the rules were ultra vires the statutory rule-making power because they imposed very short time limits, curtailed case-management powers and allowed the Secretary of State effectively to trigger the regime through detention decisions. The defendants relied on the need for speedy and efficient determination and on the tribunal’s powers to adjourn or transfer cases out of the fast track.

The claim followed earlier litigation concerning the Detained Fast Track system, including [2014] EWHC 2245 (Admin) and related Court of Appeal decisions. The central issue was whether the current Fast Track Rules secured justice and a fair tribunal system as required by the Tribunals, Courts and Enforcement Act 2007.

1. The challenge succeeded. The Fast Track Rules were ultra vires. The rationality challenge was unnecessary to decide.

2. The statutory power permitted different procedural rules for different classes of case. A separate expedited regime was lawful in principle where the relevant cases could be dealt with fairly. The objectives in section 22(4) of the Tribunals, Courts and Enforcement Act 2007 did not all have equal status. The requirement that justice be done had an element of priority over speed and efficiency.

3. The court’s review was not confined to Wednesbury irrationality. Rules could tolerate individual errors and could not be required to be risk-free. They were nevertheless invalid if structural unfairness was inherent in the scheme, contrary to the minimum level of fairness and irreducible minimum of due process required in asylum appeals.

4. The Fast Track Rules imposed a serious procedural disadvantage. Detained appellants and their representatives had to prepare the substantive appeal, and any application for adjournment or transfer out of the fast track, within a very short period. The disadvantage was imposed through the respondent’s detention and case-allocation decisions rather than through judicial case management.

5. The limited powers under rules 12 and 14 did not cure the defect. The short adjournment limit and the need to establish at the hearing that the appeal could not justly be determined within the fast-track timetable created a real risk that the appellant would lack time to assemble the necessary application while preparing the appeal itself.

6. The earlier decision in Detention Action v Secretary of State for the Home Department did not determine the vires of the Fast Track Rules as such. Its conclusions therefore attracted respect but did not prevent the present challenge, which was supported by fuller evidence and more focused argument.

7. The interpretation of rule 2 which allowed the Secretary of State a discretion to select suitable appeals was doubtful and probably unsupported by the rule’s wording. A policy could not empower the Secretary of State to act inconsistently with the statutory instrument. The issue was not strictly necessary to the decision.

8. Because the Upper Tribunal’s fast-track provisions were parasitic on the First-tier Tribunal regime, those provisions were also necessarily ultra vires.

The judgment records earlier proceedings in the same litigation, including decisions of Ouseley J and the Court of Appeal. Those decisions concerned the wider Detained Fast Track system and related relief, rather than the vires of the current Fast Track Rules. The present claim succeeded in the Administrative Court.