R (on the application of TN (Vietnam)) v Secretary of State for the Home Department and another

Procedural rules which create an unacceptable systemic risk of unfairness do not automatically invalidate every tribunal decision made under them. The tribunal’s jurisdiction derives from primary legislation. An individual decision is therefore valid unless the claimant establishes that the procedure was unfair in the circumstances of that case.

The court must require a high degree of fairness, recognise the systemic risk, examine any causal connection between the defective rules and the alleged disadvantage, and respect finality. There is no presumption either way. The ultimate question is whether the hearing as a whole was fair. If material unfairness is proved, it is no answer that the appeal would probably have failed under a fair procedure.

The appellant’s asylum appeal was dismissed by the First-tier Tribunal under the accelerated procedure established by the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005. In separate litigation, the equivalent 2014 rules were held structurally unfair and ultra vires. Ouseley J subsequently held that the 2005 rules were also ultra vires, but refused to quash the appellant’s tribunal determination because her own hearing had not been unfair: [2017] EWHC 59 (Admin).

The Court of Appeal dismissed her appeal: [2018] EWCA Civ 2838. The Supreme Court considered whether every determination made under the invalid rules was automatically a nullity, what approach governed an application to quash such a determination, and whether the appellant’s hearing had in fact been unfair.

1. The appeal was dismissed. The invalidity of the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 did not automatically render every determination made under them a nullity. The rules created an unacceptable risk of unfairness in a significant number of cases, but that did not establish unfairness in every case (Lady Arden at paras 53–56; Lord Sales at paras 80–84).

2. The First-tier Tribunal’s jurisdiction to determine an immigration appeal was conferred by section 82(1) of the Nationality, Immigration and Asylum Act 2002, rather than by the procedural rules. Fairness was an implied condition governing the exercise of that jurisdiction. A determination would therefore be invalid in the wide Anisminic sense if the procedure was unfair in the individual case, but not merely because the tribunal had operated under ultra vires rules (paras 55–56, 80–85).

3. A claimant seeking to set aside a fast-track determination must identify how the defective procedure adversely affected the conduct of the particular hearing. There is no presumption that a hearing conducted under the rules was either fair or unfair. The court must consider the case as a whole and apply anxious scrutiny, while recognising that asylum proceedings require a high degree of fairness (paras 62, 65–68, 86–88).

4. The Court approved the four non-exhaustive factors stated by Singh LJ: the high standard of fairness; the systemic risk created by the rules; the need for a causal link between that risk and events in the individual case, without any presumption; and the importance of finality, including delay and the circumstances in which later evidence was obtained. The ultimate question remains whether the procedure was unfair in the particular case (paras 72, 87–89).

5. Apparent-bias authorities did not justify automatic nullification. Apparent bias is an irremediable defect persisting throughout a hearing, whereas a person affected by the fast-track rules can identify whether and how their preparation or presentation was actually impaired (paras 59–60, 85).

6. The appellant was legally represented, sought no adjournment or relevant medical evidence, and showed no procedural disadvantage attributable to the shortened timetable. Her later trafficking claim was materially different and remained available for determination outside the fast-track system. The courts below were entitled to find that her tribunal hearing was fair (paras 62–72, 90–92).

1. United Kingdom Supreme Court: Dismissed the appeal and affirmed that the individual tribunal determination was not automatically invalid and had not been shown to be unfair: [2021] UKSC 41.
2. Court of Appeal: Dismissed the appellant’s appeal, holding that systemic invalidity did not nullify every determination and that her own hearing was fair: [2018] EWCA Civ 2838; [2019] 1 WLR 2647.
3. High Court, Administrative Court: Ouseley J held the 2005 fast-track rules ultra vires but refused to quash the appellant’s tribunal determination. He separately quashed the rejection of her later submissions: [2017] EWHC 59 (Admin); [2017] 1 WLR 2595.
4. First-tier Tribunal: Dismissed the appellant’s asylum appeal after a hearing under the 2005 fast-track rules.