TN (Vietnam) & US (Pakistan), R (On the Applications Of) v Secretary of State for the Home Department & Anor (Rev 1)

Fast-track appeal rules are ultra vires where their structure creates an inevitable risk that a significant number of detained asylum appellants cannot present their cases fairly. The validity of the rules does not automatically nullify every decision made under them. An appeal decision made by a tribunal with jurisdiction remains effective unless set aside or quashed. The appropriate route after exhaustion of appeal rights is ordinarily an application to the First-tier Tribunal under rule 32. The tribunal must consider the individual fairness of the appeal and the interests of justice. Judicial review must not circumvent statutory appeal procedures, time limits or discretionary remedies. Subsequent fresh-claim decisions may be quashed where they unlawfully treat inadequate evidence as incapable of creating a realistic prospect of success.

These were lead judicial review claims concerning the lawfulness and consequences of the 2005 fast-track procedure rules for detained asylum appeals. The 2005 rules were materially similar to the 2014 rules declared ultra vires by the Court of Appeal in R (Detention Action) v First-tier and Upper Tribunals [2015] EWCA Civ 840.

The claimants argued that the 2005 rules were ultra vires, that their appeal decisions were consequently nullities, and that later decisions concerning fresh claims, removal and trafficking were unlawful. The central issues were whether the rules were ultra vires, whether individual appeal decisions were automatically invalid, the proper forum and approach for challenging them, and the lawfulness of the later decisions in each claimant’s case.

1. The 2005 rules. The 2005 fast-track rules were made under statutory powers requiring proceedings to be handled fairly, quickly and efficiently. Their structure, timetable and safeguards were materially indistinguishable from the 2014 rules. Applying the reasoning of the Court of Appeal in R (Detention Action) v First-tier and Upper Tribunals [2015] EWCA Civ 840, the rules were structurally unfair and ultra vires. The conclusion depended on the rules in their legal and factual context, not on statistical evidence of their practical operation.
2. Effect of invalidity. The invalidity of the rules did not automatically invalidate every appeal decision made under them. The First-tier Tribunal had jurisdiction under the Nationality, Immigration and Asylum Act 2002 independently of the rules. An appeal decision remained in force until quashed or set aside. Its invalidity depended on individual fairness and the applicable procedural and discretionary requirements.
3. Proper remedy. Once appeal rights were exhausted, an application to set aside under rule 32 of the 2014 Tribunal Procedure Rules ordinarily had to be made to the First-tier Tribunal. Judicial review should not be used to evade that remedy, statutory appeal routes, time limits or finality in litigation. The tribunal was to decide whether procedural irregularity and the interests of justice required setting aside, including whether the fast-track timetable caused actual unfairness in the individual case.
4. Individual claims. TN’s appeal was not shown to have been unfair and was not quashed. Her National Referral Mechanism reasonable-grounds decision and August 2015 fresh-claim decision were upheld. Her October 2015 fresh-claim decision was quashed because the new medical evidence could no longer rationally be rejected as incapable of creating a realistic prospect of success.
5. US’s appeal was found to have been unfair in the circumstances, particularly because of the short period for legal advice, withdrawal of representation, lack of documents and mental-health concerns. Nevertheless, the appeal decision was not quashed because the proper route was an application to the First-tier Tribunal. His fresh-claim decisions were quashed and a further appeal was to follow.

The court declared that the 2005 fast-track rules were ultra vires, refused to quash the appeal decisions, quashed TN’s October 2015 decision and US’s fresh-claim decisions, and refused to quash the remaining TN decisions.

• Court of Appeal: In R (Detention Action) v First-tier and Upper Tribunals [2015] EWCA Civ 840 , the Court of Appeal dismissed the Lord Chancellor’s appeal and held the 2014 fast-track rules ultra vires.
• High Court (Administrative Court): The present court applied that reasoning to the materially similar 2005 rules, declared them ultra vires, but refused to quash the individual appeal decisions and dealt separately with the subsequent decisions.