PN (Uganda), R (On the Application Of) v Secretary of State for the Home Department

An invalid fast-track procedural scheme does not automatically invalidate every appeal conducted under it. The court must assess whether the individual proceedings were in fact unfair. Short time limits may cause unfairness where an asylum claim depends on evidence from abroad, particularly where the process places an advocate in an unfair dilemma about seeking an adjournment. An unlawful detention policy affects lawfulness only if it bore on the decision to detain. Detention may remain lawful while the individual fast-track proceedings remain fair. However, detention following the quashing of the only tribunal determination is unlawful where no determination exists and completion within a reasonable period is not possible. Evaluative findings of fairness are disturbed on appeal only where shown to be wrong.

PN, a Ugandan national, claimed asylum in 2013 on the basis of her sexual orientation. The First-tier Tribunal dismissed her appeal under the detained fast-track procedure, and permission to appeal was refused.

Following challenges to the validity of the fast-track rules, PN brought judicial review proceedings. The Administrative Court held that the First-tier Tribunal proceedings had been unfair and quashed the determination. It also held that detention from 6 August to 10 September 2013 was unlawful, while other periods were lawful: [2019] EWHC 1616 (Admin).

Both parties appealed. The issues concerned the scope of permission to challenge the tribunal determination, procedural fairness, and the lawfulness of detention during three separate periods.

Appeals and orders. The Secretary of State’s appeal was dismissed. PN’s appeal was allowed in part. The First-tier Tribunal determination dated 30 August 2013 was quashed and PN’s appeal was to be reheard. Detention from 22 July to 6 August 2013 was lawful; detention from 6 August to 10 September 2013 and from 10 September to 12 December 2013 was unlawful.

1. Permission to challenge. The ordinary meaning of an order is determined in its linguistic context, having regard to its background, context and purpose. The order permitting amendment to reflect the judgments in R(TN (Vietnam)) permitted PN to challenge the First-tier Tribunal determination in the Administrative Court. The absence of draft amended grounds and the failure to join the tribunal were procedural defects, but did not make the amendment a nullity.
2. Fairness. The Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 were ultra vires, but that did not make every appeal under them automatically unfair. Fairness depended on the individual facts. The judge was entitled to find unfairness because evidence from Uganda, which could have materially assisted PN’s case, became available shortly after the tribunal hearing. The detained fast-track process created an unfair dilemma between seeking an adjournment and exposing evidential deficiencies. The refusal of permission to challenge the fresh-claim decision did not determine whether the earlier tribunal proceedings had been unfair.
3. Appellate review. An appeal by way of review is not a rehearing. A factual or evaluative finding may be overturned only if wrong, for example because of a material gap in logic, inconsistency or failure to consider a material factor.
4. Detention. The powers under section 10 of the Immigration and Asylum Act 1999 and paragraph 16 of Schedule 2 to the Immigration Act 1971 had to be exercised for their statutory purpose. Detention under an unlawful policy was unlawful only if that policy bore on and was relevant to the decision to detain. Detention from 29 July to 6 August remained lawful because the need for foreign evidence, and therefore the unfairness, arose only during the asylum interview on 5 August.
5. After 10 September, the detention could not be justified by reliance on the quashed tribunal determination. Properly analysed, there had been no determination and a fresh determination could not be completed within a reasonable period. The earlier approach in Draga could not assist because it had been overruled by the Supreme Court.

• Court of Appeal (Civil Division) — The Secretary of State’s appeal was dismissed and PN’s appeal was allowed in part. The First-tier Tribunal determination was quashed and the relevant detention findings were varied: [2020] EWCA Civ 1213.
• Administrative Court — The court found the First-tier Tribunal proceedings unfair, quashed the determination, held detention from 6 August to 10 September 2013 unlawful, and held the other relevant periods lawful: [2019] EWHC 1616 (Admin).