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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Detention Action v First-Tier Tribunal (Immigration and Asylum Chamber) & Ors  EWHC 1689 (Admin) (12 June 2015)
Cite as:  WLR(D) 267,  EWHC 1689 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Detention Action
|- and -
|First-tier Tribunal (Immigration and Asylum Chamber)
Upper Tribunal (Immigration and Asylum Chamber)
Secretary of State for the Home Department
Oliver Sanders (instructed by Treasury Solicitor) for the 3rd Defendant
Cathryn McGahey (instructed by Treasury Solicitor) for the Interested Party
Hearing dates: 19th and 20th May 2015
Crown Copyright ©
Mr Justice Nicol :
The differences between the two procedural regimes in the First-tier Tribunal
i) Under the Principal Rules the notice of appeal must be received by the Tribunal not later than 14 days after the person concerned is sent the decision against which an appeal is brought - Principal Rules r.19. A Fast Track notice of appeal must be received within 2 working days of the day on which the person concerned was provided with the decision – FTR r.5(1).
ii) In a case under the Principal Rules the Respondent has 28 days to provide (in summary) any statement of evidence, record of interview, any unpublished document relied on by the Respondent and any fresh decision or further grounds - Principal Rules rr.23 and 24. The equivalent period under the FTR is 2 working days – FTR r.7.
iii) No specific time is set by the Principal Rules for the listing of the appeal. A Fast Track appeal must be listed for hearing not later than 3 working days after the provision of the Respondent's evidence, unless the Tribunal is unable to arrange a hearing within that time, in which case it must be as soon as practicable - FTR r.8(1). This means that the hearing of a Fast Track appeal will normally be within 5 working days of the notice of appeal being lodged and within 7 working days of the decision against which the appeal is brought.
iv) The Principal Rules set no specific time for giving a judgment of the FTT which has been reserved. In the case of a Fast Track appeal the decision and the reasons for it must be given not later than 2 working days after the day of the hearing – FTR r.10.
v) If a case has been heard under the Principal Rules, an application for permission to appeal to the UT must be received not later than 14 days after the date on which the applicant was provided with the decision of the FTT - r.33(2). In the case of a Fast Track appeal, the time limit is 3 working days – FTR r.11.
i) When an appeal is subject to the Principal Rules the Tribunal may extend or shorten the time for complying with any rule, practice direction or direction – r.4(3)(a). When dealing with a Fast Track appeal the Tribunal has no such power – FTR r.1 Table 2, although there is a limited power to extend time for lodging a notice of appeal if that would be in the interests of justice – FTR r.5(2)-(6).
ii) The hearing of an appeal under the Principal Rules can be adjourned or postponed by the Tribunal – r.4(3)(h). When hearing a Fast Track appeal the Tribunal has no such broad power – FTR r.1 Table 2. On the contrary there is a presumption that the hearing must be concluded on the same day – FTR r.9(1). FTR r.12 does allow the Tribunal to adjourn or postpone a Fast Track appeal hearing if it could not be justly decided on the listed day, but only if there is an identifiable date, not more than 10 working days later, on which the Tribunal can conclude the hearing and justly decide the appeal within the timescales provided for in the Fast Track Rules – FTR r.12.
iii) It is right to note that when the Tribunal is dealing with a Fast Track appeal, it has a general power to transfer the appeal out of the fast track "if the Tribunal is satisfied that the case cannot justly be decided within the timescales provided for in the Fast Track Rules." – FTR. r.14(1) Both Mr Sanders and Ms McGahey placed considerable reliance on this provision and I will have to consider it again later.
The criteria for application of the FTR rather than the Principal Rules
"The Fast Track Rules apply to an appeal to the Tribunal or an application for permission to appeal to the Upper Tribunal where the appellant -
(a) was detained under the Immigration Acts at a place specified in paragraph (3) when provided with notice of the appealable decision against which the appellant is appealing; and
(b) has been continuously detained under the Immigration Acts at a place or places specified in paragraph (3) since that notice was served on the appellant."
Paragraph 3 of Rule 2 then lists Colnbrook House and Harmondsworth Immigration Removal Centres, both of which house men, and Yarl's Wood Immigration Removal Centre, which accommodates women.
The Enabling Legislation for the Procedure Rules
"(1) There are to be rules, called 'Tribunal Procedure Rules' governing –
(a) the practice and procedure to be followed in the First-tier Tribunal, and
(b) the practice and procedure to be followed in the Upper Tribunal.
(2) Tribunal Procedure Rules are to be made by the Tribunal Procedure Committee.
(3) In Schedule 5 –
Part 1 makes further provision about the content of Tribunal Procedure Rules,
Part 2 makes provision about the membership of the Tribunal Procedure Committee,
Part 3 makes provision about the making of Tribunal Procedure Rules by the Committee, and
Part 4 confers power to amend legislation in connection with Tribunal Procedure Rules.
(4) Power to make Tribunal Procedure Rules is to be exercised with a view to securing -
(a) that in proceedings before the First-tier Tribunal and Upper Tribunal, justice is done,
(b) that the tribunal system is accessible and fair,
(c) that proceedings before the First-tier Tribunal or Upper Tribunal are handled quickly and efficiently,
(d) that the rules are both simple and simply expressed, and
(e) that the rules where appropriate confer on members of the First-tier Tribunal or Upper Tribunal, responsibility for ensuring that proceedings before the tribunal are handled quickly and efficiently."
Whether the FTR are ultra vires: the Claimant's submissions
i) Checking whether the general detention criteria have been properly applied. Since DA 4, these, rather than the DFT criteria must be used to justify detention.
ii) Making representations, where appropriate, that the appellant is unlawfully detained.
iii) Applying for bail which itself involves identifying sureties, taking instructions from them, and checking their availability for any bail hearing and finding a bail address.
iv) Taking instructions from the appellant on the refusal letter. Restrictions on visits to detainees may mean this has to be done over more than one day.
v) Preparing the appellant's statement, checking it with the appellant and having it signed.
vi) Arranging the translation of any necessary documents.
vii) Arranging for any expert evidence, including identifying an appropriate expert, applying for an extension to the controlled legal representation certificate to fund this or any other additional expense, further representations to the legal aid authorities (if necessary in the event of initial refusal), arranging for the expert to attend the appeal hearing.
viii) Making an application where appropriate for the appeal to be transferred out of the Fast Track appeal procedure. Considering the response to such an application from the SSHD.
"The Draft Rules provide for extensive case management powers, including shortening of deadlines. The Chamber President may also issue Practice Directions and Statements, making provision for particular classes of cases. The TPC is aware of concerns that the current Detained Fast Track does not give appellants a reasonable opportunity to prepare and present their appeal – thereby creating injustice."
"leaving procedures to the discretion of Tribunal Judges would not deliver the clear, consistent and truncated timetable that the current rules provide for. It is concerned that if the strictly reduced time limits are no longer guaranteed, there may be the following results: increased detention costs; lack of detention capacity; prolonged detention that increases the risk that detention is challenged successfully; the risk of a challenge to the DFT process as a whole as incompatible with Article 5 right to liberty. The DFT process is justified on the basis that it is detention for the purposes of preventing unauthorised entry, which is permitted under Article 5(1)(f) [of the ECHR]. In considering its legality the courts have considered the periods in which individuals are detained under DFT. Any increase to this time risks making a successful challenge more likely."
"15. All of the consultation responses supported the removal of fast-track - with the exception of the Home Office. …16. The President of the FTT(IAC) has also said that he would be unwilling to recreate the existing fast-track in a practice direction. 17. This puts us in a tricky position. The Home Office is plainly determined to maintain fast-track as it exists now. The subgroup has grave doubts that doing so is compatible with our statutory duties to ensure that justice is done and the tribunal system is accessible and fair."
"BL [Langstaff J, the chair of the Committee] highlighted the Bar Council's consultation response that had questioned a party to an appeal being able to select the judicial process to be followed, and consequently put the other party at a disadvantage. The Committee agreed; entrance to the DFT was at the behest of the HO and this did not appear to fit with the Committee's remit for making procedural rules under s.22(4) of the 2007 Act. PL [Upper Tribunal Judge Peter Lane] said that the DFT had grown in scope, and pointed out the Home Secretary's comment that the HO intended to develop it further….Finally, he reminded the Committee that Tribunal judiciary had the discretion to remove people from the DFT, or adjourn proceedings, so it was possible to relax the timescales slightly."
The Committee agreed with its Chair's proposal that they should engage in discussions with the Home Office.
"our understanding is that Immigration Judges would not, if given discretion, replicate the current regime because of the risk of injustice."
At the meeting which took place on 15th May 2014 the minutes record,
"[Michael Reed] reiterated his concern that extremely short time limits did not give someone with a meritorious appeal sufficient time to assemble a case and present it to a judge particularly if there were language difficulties. This view had been supported by respondents to the TPC's consultation, and by members of the judiciary. The first opportunity someone had to seek more time was when they appeared before a judge, and under r.28 [this was the equivalent in the 2005 Fast Track Rules to r.12 of the current FTR] the Tribunal could only adjourn for 10 days or under r.30 [the equivalent under the 2005 Fast Track Rules to r.14 under the current FTR] transfer the case out of the fast track in exceptional circumstances. Current adjournment rates were 23% which appeared unacceptably high; although [Paula Waldron] highlighted this meant 77% were successfully being dealt with within these very short timescales. [Simon Ennals] made the further point that it demonstrated judicial oversight was working. [Jason Yaxley] reported HMCTS was hoping to reduce the adjournment rate and was working with the HO on this. The current presumption, but not borne out by the figures, was that much of the 23% would be due to late evidence. The consensus of the Committee was to agree option 3 of [Michael Reed's] paper: Retain fast track rules, but with modified time limits."
i) It amounted to an improper delegation of a power which ought to be a judicial function.
ii) It was contrary to the requirement in s.22(4)(a) that Procedure Rules had to be made with a view to securing that "justice was done". While there were other objectives in s.22(4), the doing of justice should be the priority.
iii) It was contrary to the Lord Chancellor's duty in the Constitutional Reform Act 2005 s.3(1) and (6) to uphold and defend the independence of the judiciary.
iv) Since it is one party to the litigation who determines whether the other should be subjected to this procedural disadvantage, there is an impression of bias in favour of the SSHD. That was reinforced because in the lead-up to the FTR, the Tribunal Procedure Committee engaged in discussions with the SSHD which were not shared with those who represented appellants.
Whether the FTR are ultra vires: the Lord Chancellor's and Home Secretary's submissions:
"(8) The appeal process provided few safeguards if any: entry into the fast track appeals process was automatic for those detained in the DFT; there was no prior or separate consideration of the continued suitability of the DFT for an individual's appeal; timescales were too short to permit the proper presentation of evidence; the combination of an accelerated appeals process and detention the while was a substantial impediment to the fairness of the process; the FTT was very reluctant to permit the removal of a case from the fast-appeals track, because the hearing itself was the only effective point at which such an application could be made; a significant percentage of appellants were unrepresented."
"The choice of an acceptable system is in the first instance a matter for the executive, and in making its choice it is entitled to take into account the perceived political and other imperatives for a speedy turn-round of asylum applications. But it is not entitled to sacrifice fairness on the altar of speed and convenience, much less expediency; and whether it has done so is a question of law for the courts. Without reproducing the valuable discussion of the development of this branch of the law in Craig, Administrative Law (5th ed), ch.13, we adopt Professor Craig's summary of the three factors which the court will weigh: the individual interest at issue, the benefits to be derived from added procedural safeguards, and the costs to the administration of compliance. But it is necessary to recognise that these are not factors of equal weight. As Bingham LJ said in Thirakumar  Imm AR 402,414 asylum decisions are of such moment that only the highest standards of fairness will suffice; and as Lord Woolf CJ stressed in R v Home Secretary ex parte Fayed  1 WLR 763, 777, administrative convenience cannot justify unfairness. In other words, there has to be in asylum procedures, as in many other procedures, an irreducible minimum of due process."
"Section 106(1A) [the provision of the Nationality, Immigration and Asylum Act 2002 which gave the Lord Chancellor the power to make procedural rules] requires the Lord Chancellor to seek to make rules which balance the requirements for fairness, speed and efficiency. In this field, speed and efficiency are unquestionably important, but there must be a limit to the degree to which fairness can be sacrificed in order to achieve speed and efficiency. It must still be possible to say that a rule which has been designed to achieve speed and efficiency is fair in its operation. Otherwise the balance required by section 106(1A) is not achieved. The requirement of fairness must depend on context. When the issue of fairness arose in SSHD v Thirakumar  Imm AR 402 at 414, Bingham LJ, as he then was, held that asylum applications are of such moment that only the highest standards of fairness will suffice, and Sir John Donaldson and Mann LJ agreed with his judgment on that issue."
i) Nationality, Immigration and Asylum Act 2002 s.94 which, as I have already noted, allows the SSHD to certify a protection or human rights claim as clearly unfounded. The effect of certification is that an appeal to the FTT can only be brought once the person concerned has left the UK. The appeal, in other words, does not suspend the SSHD's power of removal.
ii) Nationality, Immigration and Asylum Act 2002 s.97 which allows the SSHD to certify that a decision was made wholly or partly in the interests of national security. If the SSHD so certifies, the person concerned cannot appeal to the FTT but only to the Special Immigration Appeals Commission.
iii) Crown Proceedings Act 1947 s.10 which permits the Secretary of State to certify that death or injury was during military service. If a certificate is given neither the Crown nor any serviceman who inflicted the injury can be sued in tort. Recourse can only be had to various compensation schemes for members of the armed forces. The power to certify is now limited to those who were injured before 1987.
i) A claimant could choose to bring a claim for wrongful dismissal in the County Court (or the High Court if the County Court limit was exceeded) or in an Employment Tribunal as a result of Employment Tribunals Act 1996 s.3 (previously the Employment Protection Consolidation Act 1978 s.131) and the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994. Different limitation periods, provisions for maximum damages, interest and costs apply depending on which jurisdiction is chosen by the claimant.
ii) The Employment Tribunals Act 1996 s.10 and the Employment Procedure (Constitution and Rules of Procedure) Regulations 2013 SI 2013 No 1237 Schedule 1 paragraph 94 allow a Minister to direct an Employment Tribunal to conduct proceedings in private, exclude a person from the proceedings or to take steps to conceal the identity of a witness in the proceedings.
Whether the FTR are ultra vires: discussion
i) None of the parties suggested that I should simply decide on a Wednesbury (i.e. Associated Picture Houses Ltd v Wednesbury Corporation  1 KB 223) basis whether the TPC could rationally conclude that the FTR were an appropriate balance of the objectives in s.22(4).
ii) On the other hand, the objectives in s.22(4) may not always or all point in the same direction. It is likely that a balance will have to be struck. That involves a judgement. The fact that the Committee may reach a decision by a majority shows that Parliament contemplated that there may be a difference of views even within the Committee itself.
iii) The objectives are not all of equal status. Mr Sanders accepted that the first, that justice be done, ought to have an element of priority. I agree. I bear in mind as well that the Lord Chancellor must approve (or may disapprove) the Rules. The Constitutional Reform Act 2005 s.2 gave the Lord Chancellor responsibility for upholding the independence of the judiciary. Section 1 of the same Act reaffirms his role in relation to the existing constitutional principle of the rule of law. Arden LJ alluded to this in FP (Iran) (above) at  –  and its relevance to ensuring that, where a right of access to a court exists, the opportunity must be a real one.
iv) The need to accommodate objectives apart from fairness and justice in devising procedural rules means that a set of rules will not be outside the terms of s.22 simply because they could give rise to cases of unfairness or injustice. In any event that would be to set an impossible, or at least unrealistic, standard. As the Court of Appeal said in Refugee Legal Centre at  "no system can be risk-free."
v) On the other hand, in my judgment, the Rules will not be valid and within the enabling provision if they have structural unfairness built into them. In Refugee Legal Centre at  Sedley LJ spoke of "a proven risk of injustice which goes beyond aberrant interviews or decisions and inheres in the system itself." And at  he said there must be an "irreducible minimum of due process" and this level of fairness cannot be sacrificed "on the altar of speed and convenience". Likewise, Arden LJ in FP (Iran) at  said "a minimum level of fairness must be achieved".
vi) Since I am told that only asylum appeals are dealt with in the FTR, only the highest standards of fairness will suffice – see Bingham LJ in Thirakumar (above) followed in Refugee Legal Centre and FP (Iran). In the context of an appeal against a fast track decision, Moses LJ (with whom Patten and Ward LJJ agreed) echoed the same point in SH (Afghanistan) v SSHD  EWCA Civ 1284 at .
vii) Because I should be looking to see whether there is structural unfairness in the FTR, I agree with Mr Sanders that the examples given by Ms Ghelani in her witness statements have a limited value. They are not irrelevant, though. If, on their face, the FTR would seem to be structurally unfair, the examples are capable of showing that these are problems which are not just theoretical. The Strasbourg jurisprudence emphasises that the Convention rights should not just be theoretical and illusory but practical and real. It is well established that deportation and removal do not engage the rights under Article 6 of the Convention, but that is immaterial since the common law, on which our notions of procedural fairness are based, similarly prides itself on conferring rights which are practical and real.
viii) The TPC is given responsibility for drawing up Tribunal Procedural Rules by Parliament and I must give its judgement respect. It undertook a consultation process. Mr Sanders is correct that the FTR are not challenged on the grounds that this process was flawed. I have not been shown all the responses, but I can gain an impression of them indirectly from the minutes of the Committee and its Immigration Subgroup. Although Detention Action or similar bodies were not party to all the correspondence with the Home Office, part of it, at least, was reflected in the TPC's Consultation Paper. I bear in mind that the TPC is not conducting adversarial litigation and is not obliged as a matter of law to share all the discussions it has with one party to the consultation with all the others.
"Although the decisions of the FTT judiciary on whether or not to keep a case in the DFT cannot be used to show that the policy is unlawful, the fact that so many are kept in does not show that there is no prior unfairness since what is available at the substantive hearing affects that decision and what is then available for an appeal."
"7.5 However the TPC recognises that speedy adjudication is desirable where a person is detained; not least for the individual concerned who should not be deprived of freedom for longer than is necessary. Following detailed consideration and engagement with HMCTS and the Home Office, the TPC decided that the DFT process should be catered for in the Principal Rules. The language and structure of the Schedule has been harmonised with the rules in place in other Chambers, and several of the DFT time limits have been adjusted where the TPC considers there is a practical need to do so for justice. These are: the listing of an appeal, applications for permission to appeal to the Upper Tribunal, and relisting of a case after adjournment. As mentioned above (paragraph 3.1), powers have been conferred to pilot a 6 day time limit for the hearing of DFT cases instead of the 3 day time limit contained in Fast Track rule 8(1). The TPC considers that giving the appellant a slightly longer period to prepare for a hearing will reduce the number of DFT cases that have to be adjourned on the day of the hearing or transferred out of the fast track."
"the Home Office is concerned that leaving procedures to the discretion of Tribunal Judges would not deliver the clear, consistent and truncated timetable that the current rules provide for."
From the perspective of an executive department that is a perfectly understandable objective, but it is not consistent with a procedural scheme which must give an element of priority to fairness and seeing that justice is done. On the contrary, it looks uncomfortably akin to what Sedley LJ in Refugee Legal Centre said should not happen, namely sacrificing fairness on the altar of speed and convenience.
"13. Discussion of this point [whether Campsfield should be on the list of DFT venues] has also raised the issue that some of the fast track venues also house detainees who are not being dealt with under DFT. Neither draft rules or the current fast track rules allow for this possibility. If you meet the criteria in rule 2 you are assigned to the fast track.
14. Some members of the subgroup therefore think that an additional provision should be added to rule 2(1):
'has been designated by the Secretary of State as suitable for determination under the fast track procedure'
Key Question: Should we add a provision limiting fast track to those designated as suitable by the SoS?" [my emphasis]
So far as I can tell from the Minutes of the TPC meeting on 17th July 2014 this 'Key Question' was not addressed by the Committee. Certainly, the final version of rule 2 in the Rules which it made did not include the addition proposed by the Immigration Subgroup.
The Upper Tribunal Rules
The Claimant's rationality challenge
Note 1 In an email dated 6th February 2015 FTT Judge Froom relayed the views of the President of the Immigration and Asylum Chamber of the FTT that, “It will be necessary for judges hearing fast track appeals to consider on their own initiative the legality of detention as a precursor to considering the substantive merits of the fast track appeal. It will be for the Home Office to provide the necessary information and show lawful detention. It should not be left to the appellant or their representative to raise the issue.” Ms Ghelani’s evidence was that this advice was not always followed. Even where it is, an appellant’s representative will need to be ready to adduce any evidence or argument to counter the Home Office’s case that detention is lawful under the general detention criteria. [Back] Note 2 Rule 30 of the AIT Fast Track Rules required there to be “exceptional circumstances” as well as the inability to determine the appeal justly but in SH (Afghanistan) v SSHD  EWCA Civ 1284 at  the SSHD was recorded as accepting that this imposed no additional test since it was impossible to conceive of circumstances where an appeal could not be justly determined in accordance with the Fast Track timetable but was not exceptional. For this reason the omission of “exceptional circumstances” in r.14 of the FTR represented no practical difference. [Back]
Note 1 In an email dated 6th February 2015 FTT Judge Froom relayed the views of the President of the Immigration and Asylum Chamber of the FTT that, “It will be necessary for judges hearing fast track appeals to consider on their own initiative the legality of detention as a precursor to considering the substantive merits of the fast track appeal. It will be for the Home Office to provide the necessary information and show lawful detention. It should not be left to the appellant or their representative to raise the issue.” Ms Ghelani’s evidence was that this advice was not always followed. Even where it is, an appellant’s representative will need to be ready to adduce any evidence or argument to counter the Home Office’s case that detention is lawful under the general detention criteria. [Back]
Note 2 Rule 30 of the AIT Fast Track Rules required there to be “exceptional circumstances” as well as the inability to determine the appeal justly but in SH (Afghanistan) v SSHD  EWCA Civ 1284 at  the SSHD was recorded as accepting that this imposed no additional test since it was impossible to conceive of circumstances where an appeal could not be justly determined in accordance with the Fast Track timetable but was not exceptional. For this reason the omission of “exceptional circumstances” in r.14 of the FTR represented no practical difference. [Back]