TN (Vietnam) & Anor, R. (On the Application of) v Secretary of State for the Home Department & Anor

A judicial decision made under ultra vires procedural rules is not automatically a nullity. Where the tribunal’s jurisdiction derives from primary legislation, an affected person must establish procedural unfairness in the individual case before the decision is set aside.

The inquiry requires a high degree of fairness and recognition that the unlawful rules created an unacceptable risk of unfairness. There is no presumption either way. The decisive question is whether that risk had a causal connection with what occurred in the particular proceedings. Delay, finality and the steps taken to obtain relevant evidence may be considered, but they do not form an exhaustive checklist.

Two immigration appellants challenged determinations dismissing their asylum appeals under the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005. Ouseley J had declared those Rules ultra vires but held that determinations made under them were not automatically nullities: [2017] EWHC 59 (Admin).

TN and US appealed. They argued that the structurally unfair Rules necessarily infected every determination, or alternatively that Ouseley J had adopted an erroneous framework for deciding whether an individual determination should be set aside. TN also challenged the finding that her own proceedings had been fair.

The central questions were whether the determinations were automatically void, how individual procedural unfairness should be assessed, and whether TN’s determination should be quashed.

1. The appeals were dismissed, save that US’s First-tier Tribunal determination was quashed. A judicial determination made under ultra vires procedural rules is not automatically a nullity. The invalidity of the rules and the consequences for an individual determination are distinct questions.

2. The First-tier Tribunal’s jurisdiction to determine immigration appeals arose from section 82 of the Nationality, Immigration and Asylum Act 2002. Requirements concerning the form and filing of a notice of appeal regulated procedure; they did not create the Tribunal’s jurisdiction. The invalidity of the 2005 Rules therefore did not deprive it of jurisdiction in the narrow sense.

3. The 2005 Rules created an unacceptable risk of unfairness in a significant number of cases. That justified the invalidation of the procedural regime, but did not establish that every appeal conducted under it was unfair. A person seeking to set aside a determination must show procedural unfairness on the facts of the individual case. It is insufficient merely to rely on the Rules’ ultra vires character.

4. A high degree of fairness is required. There is no presumption that the procedure was either fair or unfair. The court must decide whether there was a causal connection between the risk created by the Rules and what occurred in the particular proceedings. Finality, delay and the timing of attempts to obtain additional evidence may be relevant, but the considerations identified by Ouseley J were not an exhaustive checklist. The sole ultimate question is whether the individual procedure was unfair.

5. Ouseley J was entitled to find that TN’s proceedings were not procedurally unfair. Much of the later evidence and the reasons for its late production were unconnected with the shortened timetable. On the facts, the invalid Rules had no causal connection with what occurred in her appeal.

6. US’s determination was quashed because Ouseley J had concluded that he would have quashed it had the Administrative Court been the appropriate forum, while the related Divisional Court proceedings established that the First-tier Tribunal lacked jurisdiction to entertain the set-aside application.

1. Court of Appeal (Civil Division): The appeals were dismissed, save that US’s First-tier Tribunal determination was quashed: [2018] EWCA Civ 2838.
2. High Court, Administrative Court: Ouseley J declared the 2005 Fast Track Rules ultra vires, but held that determinations made under them were not automatically nullities and required individual consideration: [2017] EWHC 59 (Admin).
3. First-tier Tribunal: The appellants’ asylum appeals had been dismissed under the 2005 Fast Track Rules.