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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> The Lord Chancellor v Detention Action [2015] EWCA Civ 840 (29 July 2015) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2015/840.html Cite as: [2015] EWCA Civ 840, [2016] 3 All ER 626, [2015] WLR 5341, [2015] 1 WLR 5341, [2016] INLR 79, [2015] Imm AR 1349, [2015] WLR(D) 352 |
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 2015] EWCA Civ 840 | ||
| 2015/2134 |
CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
ADMINISTRATIVE COURT
Mr Justice Nichol,
CO5882015
Strand, London, WC2A 2LL |
||
| 2015 |
B e f o r e :
ROLLS
LORD JUSTICE BRIGGS
and
LORD JUSTICE BEAN
____________________
| THE LORD CHANCELLOR |
Appellant |
|
| - and - |
||
| DETENTION ACTION | Respondent |
____________________
(Transcript of the Handed Down Judgment of
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Nathalie Lieven QC and Charlotte Kilroy (instructed by the Migrant's Law Project) for the Respondent
Hearing dates : 17 July 2015
____________________
VERSION OF JUDGMENT
Crown Copyright ©
Master of the Rolls:
Rules 2014 ("FTR") which govern appeals to the First-tier Tribunal (Immigration and Asylum Chamber) ("the FTT") against refusals by the Secretary of State for the Home Department ("SSHD") of asylum applications. By a decision made on 12 June 2015, Nicol J held that the FTR were ultra vires section 22 of the Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act") and he made an order quashing them. In particular, he found that the appellate stage of the system introduced by the FTR was structurally unfair and put appellants seeking to challenge asylum decisions of the SSHD at a serious procedural disadvantage. The Lord Chancellor is named as a defendant because he approved the FTR as the enabling legislation requires.
The legislative framework
"(1) There are to be
(a) the practice and procedure to be followed in the
(b) the practice and procedure to be followed in the Upper
(2)
…..
(4) Power to make
(a) that in proceedings before the
(b) that the
(c) that proceedings before the
(d) that the
(e) that the
Immigration and Asylum Chamber of the FTT is governed by The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, SI No 2604. Two different regimes are created by these Rules. Rules 1 to 46 establish the ordinary procedure. They are referred to in the Schedule itself as "the Principal Rules". The Schedule contains the FTR.
rule 2(1) provides:
"The Fast Track
(a) was detained under the
(b) has been continuously detained under the
rule 2(3) are Colnbrook House and Harmondsworth Immigration Removal Centres, both of which accommodate men, and Yarl's Wood Immigration Removal Centre, which accommodates women.
Rule 5(1) provides that the notice of appeal must be given not later than 2 working days after the day on which notice of the refusal decision is given. Paragraph (2) provides that where a notice of appeal is provided outside the time limit in paragraph (1), the tribunal must not extend the time for appealing unless it considers that it is in the interests of justice to do so.
Rule 7 provides that the respondent must, not later than 2 working days after the day on which the tribunal provides the respondent with the notice of appeal, provide various documents to the tribunal.
Rule 8 provides that the tribunal must fix a date for the hearing of the appeal which is (a) not later than 3 working days after the day on which the respondent provides the documents under rule 7 or (b) if the tribunal is unable to arrange a hearing within that time, as soon as practicable.
Rule 9(1) provides that the tribunal must conclude the hearing of the appeal on the date fixed under the FTR. Paragraph (2) provides inter alia that, where the tribunal postpones or adjourns the hearing under rule 12 or 14(2)(a), the requirement referred to in paragraph (1) ceases.
Rule 12 provides:
"Adjournment
Unless the
(a) the appeal could not justly be decided if the hearing were to be concluded on the date fixed under the Fast Track
(b) there is an identifiable future date, not more than 10 working days after the date so fixed, upon which the
Rule 14 provides:
"Transfer out of fast track
(1) Where the Fast Track
(a) if all the parties consent; or
(b) if the
(2) When making an order under paragraph (1), the
(a) postpone or adjourn any hearing of the appeal or application; and
(b) give directions in
Rules including those differences between the Fast Track and ordinary provisions of the Tribunal Procedure (Upper Tribunal) Rules 2008 can be tabulated as follows:
| Stage | Fast-track Rules |
Principal Rules |
| Notice of Appeal | Two working days from notice of decision (Schedule, Rule 5) |
14 days from notice of decision (2014 Rules, Rule 19) |
| Service of Respondent's Bundle on FTT |
Two working days from service of notice of appeal (Schedule, Rule 7) |
28 days from receipt of notice of appeal (2014 Rules, Rule 24) |
| Hearing of appeal by FTT | Three working days after service of Respondent's Bundle on FTT (Schedule, Rule 8) |
No fixed time limits |
| Adjournments | Maximum of 10 working days permitted (Schedule, Rule 12) |
No fixed time limits (2014 Rules, Rule 4(3)(h)) |
| Service of Determination by FTT | Two working days after hearing (Schedule, Rule 10) |
No fixed time limits (2014 Rules, Rule 29) |
| Application to FTT for Permission to appeal to UT | Three working days from service of determination (Schedule, Rule 11) |
14 days after service of the determination (2014 Rules, Rule 33) |
| Renewed application to UT for PTA |
Four working days after FTT sends notice of refusal of leave (UT Rules, Rule 21(3)(a)(ii)) |
14 days after FTT sends notice of refusal of leave (UT Rules, Rule 21(3)(a)(i)) |
| Hearing of appeal by Upper Tribunal | Two working days after permission granted if decision granting permission sent electronically or delivered personally, otherwise five working days. (UT Rules 36A) |
No time limits. |
| Notice of appeal | One day's notice of hearing date. (UT Rules, Rule 36(2)(aa)) |
At least 14 days notice of hearing date required. (UT Rules, Rule 36(2)) |
The grounds of appeal
role in allocating cases to the FTR created an unacceptable risk of unfairness or made an otherwise fair process unfair; (ii) holding that (a) any unfairness was sufficiently serious to be characterised as "structural" and (b) the FTR provisions allowing for adjournments and requiring transfer out of the FTR were not capable of ensuring fairness or sufficiently reducing any risk of unfairness; (iii) failing to consider whether the FTR provisions allowing for adjournments and requiring transfer out of the FTR sufficiently mitigated any perceived disadvantage or unfairness arising out of the SSHD's role in allocating cases to the FTR; and (iv) departing from the decision of Ouseley J in R (Detention Action ) v SSHD [2014] EWHC 2245 (Admin) ("DA 1").
reasons which I set out in more detail below that the judge was wrong to conclude that the FTR are "structurally unfair" as a result of the "serious procedural disadvantage which comes from the abbreviated timetable and curtailed case management powers together with the imposition of this disadvantage on the appellant by the [SHHD]" (para 60 of the judgment). This is a distillation of the first three grounds of appeal. Mr Eadie did not pursue the fourth ground of appeal.
Background
asylum claims. Individuals are kept in detention pending the determination by the SSHD of their claims and the determination by the FTT or the UT of appeals. It is well established that the prompt and effective determination of asylum claims is in the public interest and to a legitimate government policy objective: see R (L) v SSHD [2003] EWCA Civ 25, [2003] 1 WLR 1230 at paras 48 to 53 and R (Refugee Legal Centre) v SSHD [2004] EWCA Civ 1481, [2005] 1 WLR 2219 at paras 6 to 8 and 20 to 25.
detention regime. In his judgment in DA1, Ouseley J accepted that the manner in which the DFT was being operated created an unacceptable risk of unfair determinations for vulnerable or potentially vulnerable applicants who did not have access to lawyers sufficiently early in the process. But he did not accept the broad attack that was made by the claimant on the FTR appeals process. At para 184 of his judgment, he said that he did not consider that the appeals process was ultra vires or that the FTR, in their 2005 form created an unacceptable risk of unfairness.
view, the outcome of the appeal before this court depends on the specific submissions that were addressed to us on the FTR themselves. I propose to say no more about the earlier challenges.
The judgment of Nicol J
reasoning is to be found in the following paragraphs of his judgment :
"57. In my judgment the FTR do incorporate structural unfairness. They put the Appellant at a serious procedural disadvantage…..
…….
60. What seems to me to make the FTR structurally unfair is the serious procedural disadvantage which comes from the abbreviated timetable and curtailed case management powers together with the imposition of this disadvantage on the appellant by the
Some introductory points
asylum appeal involves a full adversarial hearing in which the FTT can and does hear oral evidence from the SSHD and the appellant on all issues before it. It can consider evidence that was not put before the decision-maker, including evidence about matters arising after the decision is taken and it makes fresh findings of fact. As Ms Lieven points out, many refusals of asylum turn on the SSHD making adverse findings on the appellant's credibility. In practice, it is likely that the only way to displace such findings on appeal is for the appellant to produce some corroborative evidence to support his account, whether it is specific to the individual or relating to the country of origin to which he will be returned if his appeal fails. The combination of a highly expedited timetable and the fact that the appellant is in detention makes this task very difficult.
representative must perform in connection with an appeal. The judge assumed that appellants would be legally represented, although there was some doubt as to the extent to which this would be the case. I shall make the same assumption. The tasks include:
(i) Checking whether the general
(ii) Making
(iii) Applying for bail if the
(iv) Taking instructions from the appellant on the
(
(
(
detention and will therefore have limited access to their legal representatives is explained in the witness statement of Mr Blakely, a solicitor who has extensive experience of dealing with asylum cases. He says at para 103 of his statement:
"We usually instruct counsel to
The court's approach to the vires of the FTR
reference to section 22(4) of the 2007 Act and whether the power to make the rules has been exercised "with a view to securing" the five objectives set out in subsection (4)(a) to (e). There might appear to be a tension between (a) and (b) on the one hand and (c) and (e) on the other. But in my view, the tension is more apparent than real: the rules must secure that the proceedings are handled quickly and efficiently, but in a way which ensures that justice is done in the particular proceedings and that the system is accessible and fair. Speed and efficiency do not trump justice and fairness. Justice and fairness are paramount. This reflects what Sedley LJ said in Refugee Legal Centre at para 8:
"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-
v SSHD [2007] EWCA Civ 13, [2007] INLR 224 at para 58.
requirements of fairness and justice include that the appeal process in the DFT provides a fair opportunity for appellants to present their cases properly. The claimant says that the time limits are so tight that many asylum seekers are denied the opportunity to present their appeals effectively and the various safeguards on which the SSHD and the Lord Chancellor rely are insufficient to secure justice by means of a fair appeal process. The claimant also says that the unfairness is aggravated by the fact that the SSHD is the other party to the appeal, so that she is able to gain a major litigation advantage by being able to decide that the appeal is suitable to be placed in the FTR. The SSHD and the Lord Chancellor say that the safeguards contained in the FTR are sufficient to render the system fair and just.
RLC and R (Tabbakh) v Staffordshire and West Midlands Probation Trust [2014] EWCA Civ 827, [2014] 1 WLR 4620 indicate the general approach that the court should adopt when assessing whether a system for challenging adverse findings is unfair so as to be unlawful. In RLC the issue was whether the administrative decision-making stage of the detained fast track system which the SSHD had introduced was inherently unfair so as to be unlawful. The court said that the question was whether the system "considered in the round" carried "an unacceptable risk of unfairness to asylum seekers" (para 20).
relies on para 49 of the judgment of Richards LJ in support of his submission that there must be a high risk of unlawful decisions inherent in the system before a court will declare a system to be unlawful:
"That the court will be slow to find that a system is inherently unfair and therefore unlawful is illustrated by
run of cases that go through the system; (ii) a successful challenge to a system on grounds of unfairness must show more than the possibility of aberrant decisions and unfairness in individual cases; (iii) a system will only be unlawful on grounds of unfairness if the unfairness is inherent in the system itself; (iv) the threshold of showing unfairness is a high one; (v) the core question is whether the system has the capacity to react appropriately to ensure fairness (in particular where the challenge is directed to the tightness of time limits, whether there is sufficient flexibility in the system to avoid unfairness); and (vi) whether the irreducible minimum of fairness is respected by the system and therefore lawful is ultimately a matter for the courts. I would enter a note of caution in relation to (iv). I accept that in most contexts the threshold of showing inherent unfairness is a high one. But this should not be taken to dilute the importance of the principle that only the highest standards of fairness will suffice in the context of asylum appeals.
RLC and Tabbakh involved challenges to policies of the executive. He submits that the court should be more circumspect about reaching conclusions as to the fairness of a scheme which has been the subject of wide consultation (including of the judiciary) and is the product of the deliberations of a Rule Committee and is contained in legislation (in our case subject to the negative resolution procedure). That is why he submits that the judge was right to say at para 56(viii): "the TPC is given responsibility for drawing up the Tribunal Procedural Rules by Parliament and I must give its judgment respect".
regard to and respect the views of the TPC as to the appropriate procedural rules. But this should not be taken too far. The material that we have been shown indicates that during the consultation process the TPC itself and most of the consultees expressed great concern about the potential unfairness of the proposed FTR. It should also be noted that the TPC decided to support the proposed rules after correspondence from the then Lord Chancellor in which he raised the possibility of his overruling the TPC's initial view and supporting the position of the SSHD. For this reason alone, the court should exercise caution about giving too much weight to the judgment of the TPC. In any event, the question is whether the FTR satisfy the requirements of justice and fairness stated in section 22(4) of the 2007 Act. The answer to this question does not call for expertise which the court does not possess. The court is well equipped to decide whether an appeal process is fair and just. I accept that the concepts of fairness and justice are not susceptible to hard-edged definition. That is why a margin of discretion should be accorded to the TPC, but it should be modest.
R v SSHD ex p Saleem [2001] 1 WLR 443 and FP (Iran) as being examples of the kind of case where the court does not allow a margin of discretion to a rule-making body. In Saleem, the issue was whether rule 42(1)(a) of the Asylum Appeals (Procedure) Rules 1996 on deemed service was ultra vires the enabling Act. It was held that it was ultra vires on the grounds that the rule involved a complete denial of access to the Immigration Appeal Tribunal, a fundamental right which could only be abrogated by an Act of Parliament either expressly or by necessary implication. FP (Iran) was an analogous case. These were striking and extreme cases. I do not consider that they shed light on the extent of the margin of discretion that should be allowed in a case such as the present. Ultimately, the question that arises in this case is whether there is systemic or structural unfairness inherent in the FTR such as to render them ultra vires section 22(4) of the 2007 Act. That is a question of law for the court to determine. It turns on whether the safeguards on which the SSHD and the Lord Chancellor rely render the system fair and just.
The safeguards relied on by the SSHD and the Lord Chancellor
result from the tight time limits.
immigration and asylum appeals. They are acutely aware of the consequences of success or failure for individual appellants and their families. They are, therefore, best placed to assess the requirements of justice and fairness in the particular facts and circumstances of each case. We should respect and take account of their expertise: see AH (Sudan) v SSHD [2007] UKHL 49, [2008] AC 678 per Baroness Hale at para 30. In short, we should trust them to get it right.
required by rule 2 of the Principal Rules to give effect to the "overriding objective" when they exercise any power under the rules including the FTR. The overriding objective is "to enable the Tribunal to deal with cases fairly and justly" and includes "ensuring, so far as practicable, that the parties are able to participate fully in the proceedings" (rule 2(1)(c)) . Rule 5(2) permits an extension of the time for appealing if the tribunal considers that it is in the interests of justice to do so. Rule 14 is particularly important and (Mr Eadie submits) provides a complete answer to the complaint of unfairness. It obliges the tribunal to transfer an appeal out of the fast track if it is satisfied that the case "cannot justly be decided within the timescales provided for in the Fast Track Rules".
represented by lawyers.
Discussion
asylum appeals are often factually complex and difficult. They sometimes raise difficult issues of law too. I am unpersuaded that the safeguards are sufficient to overcome the unfairness inherent in a system which requires asylum seekers to prepare and present their appeals within 7 days of the decisions which they seek to challenge.
tribunal judges who deal with the appeals. I accept that they are specialist judges who can usually be trusted to get the right answer on the basis of the material that is presented to them. I am also sure that they do their best to comply with the overriding objective of dealing with appeals justly. Nevertheless, in view of (i) the complex and difficult nature of the issues that are often raised; (ii) the problems faced by legal representatives of obtaining instructions from individuals who are in detention; and (iii) the considerable number of tasks that they have to perform (see para 20 above) the timetable for the conduct of these appeals is so tight that it is inevitable that a significant number of appellants will be denied a fair opportunity to present their cases under the FTR regime.
rules 12 and 14. Rule 12 gives the Tribunal the power to postpone or adjourn the hearing of the appeal for no more than 10 days if it cannot be justly decided on the date fixed under the FTR (i.e. within 7 days from the date of the decision under appeal). I agree with the judge that the power to adjourn "has a very limited role because of the stipulation that the adjourned hearing must take place within 10 days" (para 62). That is why the main focus of the argument before us was on rule 14 which provides that, if the tribunal is satisfied that the case cannot justly be decided within the timescales provided for in the FTR, it must order the FTR to cease to apply. In that event, the Principal Rules apply. It is not in dispute that under the Principal Rules appellants have a fair opportunity to present their cases properly and have them decided justly. At first sight, the argument based on rule 14 seems to be formidable. If an appeal cannot be decided justly within the FTR time limits, it must be transferred out. Why is this not a complete answer to the claimant's challenge?
Review Hearing and no effective opportunity to deal with an application to transfer an appeal out of the fast track until the substantive hearing of the appeal itself. It follows that the appellant and his legal representative must always be ready to conduct the appeal in case the application to transfer is rejected.
real risk that 7 working days will simply be too short to assemble such an argument (and, at the same time, prepare for the full appeal in case the Tribunal decides to proceed)". I doubt whether there is much force in the argument that an appellant's representative will not have the time to prepare both for an application to transfer out of the fast track and for the appeal itself in case the application to transfer is dismissed. It seems to me that it will inevitably become clear during the course of the preparation for the appeal whether the appellant has grounds for making an application to transfer out of the fast track. It is unlikely that significant additional time will be required to prepare for the making of the application.
rule 14 does not provide the complete answer to the claimant's case that at first sight it seems to offer. First, it may be difficult for the appellant to persuade the tribunal that the appeal cannot be justly determined in the limited time available. There may not have been sufficient time to complete inquiries into possible further evidence. An appeal is bound to seek to challenge the reasons given by the SSHD for refusing the asylum claim. As I have said, many refusals turn on adverse findings on the appellant's credibility. The focus of the preparation for an appeal will often, therefore, be on the search for evidence to corroborate the appellant's account in rebuttal of the adverse findings. The period of 7 days between the date of the refusal decision and the hearing of the appeal is bound to be insufficient in a significant number of cases. I have referred to the difficulties facing legal representatives who have to take instructions from clients who are in detention. It may not be possible for them to say whether the further inquiries that they wish to make are likely to be fruitful. In such a situation, it may be difficult to persuade the tribunal that there are cogent reasons to transfer a case out of the fast track.
required to argue that the evidence that has already been submitted in support of the appeal is insufficient. The appellant is placed in a very difficult position. The stronger the case he seeks to advance for a transfer on the footing that there are material gaps in his evidence which he needs time to fill by obtaining further evidence, the more he damages his prospects of succeeding in his appeal if the tribunal refuses to transfer the case out of the fast track. In short, in order to explain why the time scales are unjust, the appellant has to identify all the evidential gaps in his case. But if the application to transfer is refused, the appellant will then have to persuade the judge that the appeal should be allowed notwithstanding these gaps. I accept the submission of Ms Lieven that this puts the appellant in an invidious position and is unfair and unjust.
rule 12 power and the rule 14 duty are mechanisms which are intended to ensure that the tight time limits imposed do not produce injustice in individual cases. But the expectation must be that the time limits will usually be applied. Otherwise the object of the FTR would be defeated. There is bound to be a reluctance to postpone or transfer an appeal on the day of the hearing when time has been allocated for the full hearing of the appeal and the parties and witnesses have come to give their evidence and advance their submissions. The tribunal would be likely to be more sympathetic to an application to postpone or transfer out if it were made at a case management hearing before the date of the hearing. But the timescales of the FTR do not permit this. We were told that typically the FTT hears two or three asylum appeals per day. Rule 10 requires the decision and the reasons for it (which may be extensive and detailed) to be given no later than 2 working days after the day of the hearing. I have little doubt that the judges of the FTT know that, if they were regularly to adjourn or transfer cases out of the fast track, this would be inconsistent with section 22(4)(e) of the 2007 Act which requires that the rules, where appropriate, confer on members of the FTT "responsibility for ensuring that proceedings before the tribunal are handled quickly and efficiently". As Ms Lieven puts it, by the time of the hearing, the SSHD and the FTT will have prepared for the appeal and there will be a momentum in favour of proceeding with the hearing which it will be difficult for an appellant to stop.
view the time limits are so tight as to make it impossible for there to be a fair hearing of appeals in a significant number of cases. For the reasons that I have given, the safeguards on which the SSHD and the Lord Chancellor rely do not provide a sufficient answer. The system is therefore structurally unfair and unjust. The scheme does not adequately take account of the complexity and difficulty of many asylum appeals, the gravity of the issues that are raised by them and the measure of the task that faces legal representatives in taking instructions from their clients who are in detention. It seems to me that some relaxation of the time limits is necessary, but it is not for the court to prescribe what is required to remedy the problem. A lawful scheme must, however, properly take into account the factors to which I have referred whilst, I acknowledge, giving effect to the entirely proper aim of processing asylum appeals as quickly as possible consistently with fairness and justice.
The relevance of the role of the SSHD in the process
rules themselves, there is also additional unfairness in the fact that the decision to place an appellant into the highly expedited FTR procedure is taken by the other party to the appeal, namely the SSHD (rather than the FTT itself): this amounts to a breach of natural justice. There is a fundamental unfairness in one party to litigation being able to impose a highly disadvantageous procedure on the other party in circumstances where the tribunal or court can only consider the matter at the hearing which is intended to be the full hearing.
view of the conclusion that I have already reached on the unfairness of the procedural rules themselves, it is not necessary to deal with this additional argument. It seems to have found some favour with the judge as is apparent from his conclusion at para 60 of his judgment "the serious procedural disadvantage which comes from the abbreviated timetable and curtailed case management powers together with the imposition of this disadvantage on the appellant by the respondent to the appeal" (emphasis added).
view) the rules themselves are procedurally fair and enable an appellant to present his appeal fairly and justice to be achieved, then I do not consider that the fact that an appellant is in the fast track system as a result of the decision of the SSHD is relevant. Ex hypothesi, the decision of the SSHD has not impeded the ability of the appellant to present his case fairly and the FTT to decide the appeal justly.
Conclusion
reasons that I have given, the FTR are systemically unfair and unjust. The appeal must, therefore, be dismissed. The object of the SSHD in placing asylum appeals in the fast track is the entirely laudable one of dealing with them quickly. This is not because she considers that they are all hopeless cases. Far from it. Although many of the appeals are dismissed, many succeed. They are placed in the fast track so that they can be handled quickly and efficiently. But the consequences for an asylum seeker of mistakes in the process are potentially disastrous. That is why section 22(4) of the 2007 Act recognises that justice and fairness should not be sacrificed on the altar of speed and efficiency. As I have explained, the FTR do not strike the correct balance between (i) speed and efficiency and (ii) fairness and justice. It is too heavily weighted in favour of the former and needs to be adjusted. Precisely how that is done is a matter for the TPC and Parliament.
Lord Justice Briggs:
Lord Justice Bean: