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

The jurisdiction of a tribunal to review or set aside its concluded decisions depends on the proper construction of its enabling legislation and procedural rules. It cannot be created by consent or procedural default. The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 did not provide a retrospective route to set aside appeal decisions finally determined under the earlier 2005 Rules. The statutory review power under section 9 of the Tribunals, Courts and Enforcement Act 2007 was validly restricted by rules requiring an application for permission to appeal and an error of law. Procedural injustice in an extreme case could instead be addressed by judicial review in the High Court.

Two judicial review claims challenged a determination of the First-tier Tribunal (Immigration and Asylum Chamber) dated 30 May 2017. The Tribunal had held that it lacked jurisdiction to set aside earlier appeal decisions made under the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005.

The underlying appeals had been determined in May and August 2014, before the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 came into force. The claimants argued that Rule 32, Rule 36 or section 9 of the Tribunals, Courts and Enforcement Act 2007 supplied jurisdiction. The Secretary of State and Lord Chancellor contended that the earlier decisions were final and that the later rules had no retrospective effect. The central issue was whether the First-tier Tribunal could set aside those concluded decisions.

1. The claims for judicial review were dismissed. The question whether the First-tier Tribunal possessed jurisdiction was one of statutory construction. It could not be determined by consent, waiver or default.

2. Rule 32 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 did not apply to appeal decisions finally disposed of under the 2005 Rules. At the relevant time there were no extant proceedings before the First-tier Tribunal. Rule 46 did not create the necessary bridge between the two procedural regimes.

3. Section 9 of the Tribunals, Courts and Enforcement Act 2007 did not provide an alternative route. Although section 9(2)(a) contemplated review on the Tribunal’s own initiative, section 9(3) permitted that power to be restricted by Tribunal Procedure Rules. Rules 34 and 35 validly limited review to cases involving an application for permission to appeal and an error of law. Neither condition existed here.

4. Rule 36 could not assist. The applications were not applications for permission to appeal, and the applicable earlier rules contained no equivalent power to treat an application to set aside or review as an application for permission to appeal.

5. The relevant rules were not ultra vires. The language of section 9(3)(a) and (d) was broad enough to authorise the restrictions. The result was consistent with the importance of finality in litigation, particularly where the decisions pre-dated the 2014 Rules. In an extreme case involving procedural injustice, judicial review in the High Court remained available.

6. The related Court of Appeal decision meant that the earlier First-tier Tribunal decision in US’s case was quashed by the High Court. Costs were dealt with as directed in the related judgment, [2018] EWCA Civ 2838.

The judgment itself records the related procedural history:

• High Court (Administrative Court): Ouseley J held that the 2005 Rules were ultra vires and proceeded on the assumption that applications to set aside would be made to the First-tier Tribunal: [2017] EWHC 59 (Admin); [2017] 1 WLR 2595.
• Court of Appeal: the related appeals in R (TN and US) v Secretary of State for the Home Department were decided in [2018] EWCA Civ 2838. The present court dismissed the judicial review claims and ordered the earlier US decision quashed.