Immigration Law Practitioners Association, R (On the Application Of) v Tribunal Procedure Committee & Anor

A procedural rule is unlawful only where unfairness is inherent or systemic in the scheme, rather than merely a possible consequence of an erroneous individual decision. A rule permitting closed material procedures in immigration appeals must be read alongside the overriding objective and common law requirements of fairness. Rule 13(2) required both a likelihood of serious physical or mental harm from disclosure and a proportionate response in the interests of justice. Those safeguards meant that the rule did not inherently authorise unfair substantive decisions. The claim nevertheless highlighted the exceptional nature of closed procedures and the need for careful judicial control, transparency and review.

The Immigration Law Practitioners’ Association challenged the legality of rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. It argued that the rule, particularly rule 13(2), unlawfully permitted the First-tier Tribunal to determine immigration appeals using material withheld from the appellant and representative, contrary to common law fairness and beyond the power conferred by section 22 of the Tribunal, Courts and Enforcement Act 2007.

The defendants contended that the rule created a judicial discretion, subject to proportionality, the overriding objective and fairness. The central issues were whether section 22 authorised the rule and whether its operation was systemically or inherently unfair.

1. The claim was dismissed. Section 22 of the Tribunal, Courts and Enforcement Act 2007 was capable of authorising rule 13. The Court of Appeal’s decision in Browning v Information Commissioner, [2014] EWCA Civ 1050, constrained the court’s ability to accept the argument that general rule-making powers could never authorise such a provision.
2. Rule 13(2) could permit a closed material procedure, but only where disclosure was likely to cause serious harm and the direction was proportionate having regard to the interests of justice. Serious harm meant significant physical or mental suffering. Likelihood required more than a mere possibility, although it did not require the ordinary civil standard.
3. The common law principle remained that a party should know and have an opportunity to answer adverse material relied upon by the tribunal. Clear statutory authority was required to override that principle. Al Rawi v Security Service, [2011] UKSC 34, showed that ordinary case-management powers did not themselves authorise determining substantive rights on undisclosed material.
4. The correct test for a generic challenge to procedural rules was whether the system as a whole created systemic or inherent unfairness such that the irreducible minimum standards of fairness could not be met. The possibility of aberrant decisions was insufficient. The context of immigration appeals and the Tribunal Procedure Committee’s views were relevant, but only a modest margin was appropriate where unfairness was apparent.
5. The rule did not mandate a closed substantive determination. A judge was required to act judicially and apply fairness and proportionality. The examples relied upon by the claimant could ordinarily be addressed through anonymity, redaction or other protective measures. A denunciatory letter from a reluctant witness did not justify a secret trial because reliability could not satisfactorily be tested without participation by the opposing party.
6. The Court considered that any use of the power should be clearly notified to the appellant and fully recorded in the determination so that it could be reviewed. That observation did not render the rule unlawful.