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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: http://www.bailii.org/ew/cases/EWCA/Civ/2015/840.html Cite as: [2015] 1 WLR 5341, [2016] 3 All ER 626, [2015] WLR(D) 352, [2016] INLR 79, [2015] EWCA Civ 840, [2015] Imm AR 1349, [2015] WLR 5341 |
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CIVIL
DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
ADMINISTRATIVE COURT
Mr Justice Nichol,
CO5882015
Strand, London, WC2A 2LL |
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B e f o r
e :
ROLLS
LORD JUSTICE BRIGGS
and
LORD JUSTICE BEAN
____________________
THE LORD CHANCELLOR |
Appellant |
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- and - |
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____________________
(Transcript of the Handed Down Judgment of
WordWave International Limited
Trading as DTI
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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:
The legislative framework
"(1) There are to berules,
to be called '
Tribunal
Procedure
Rules'
governing –
(a) the practice and procedure to be followed in theFirst-tier
![]()
Tribunal,
and
(b) the practice and procedure to be followed in the UpperTribunal.
![]()
(2)Tribunal
Procedure
Rules
are to be made by the
Tribunal
Procedure Committee.
…..
(4) Power to makeTribunal
Procedure
Rules
is to be exercised with a
view
to securing -
(a) that in proceedings before theFirst-tier
![]()
Tribunal
and Upper
Tribunal,
justice is done,
(b) that thetribunal
system is accessible and fair,
(c) that proceedings before theFirst-tier
![]()
Tribunal
or Upper
Tribunal
are handled quickly and efficiently,
(d) that therules
are both simple and simply expressed, and
(e) that therules
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."
"The Fast TrackRules
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 theImmigration
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 theImmigration
Acts at a place or places specified in paragraph (3) since that notice was served on the appellant."
"Adjournment
Unless theTribunal
makes an order under
rule
14, the
Tribunal
may postpone or adjourn the hearing of the appeal only where the
Tribunal
is satisfied that—
(a) the appeal could not justly be decided if the hearing were to be concluded on the date fixed under the Fast TrackRules;
and
(b) there is an identifiable future date, not more than 10 working days after the date so fixed, upon which theTribunal
can conclude the hearing and justly decide the appeal within the timescales provided for in the Fast Track
Rules."
"Transfer out of fast track
(1) Where the Fast TrackRules
apply to an appeal or application, the
Tribunal
must order that the Fast Track
Rules
shall cease to apply—
(a) if all the parties consent; or
(b) if theTribunal
is satisfied that the case cannot justly be decided within the timescales provided for in the Fast Track
Rules.
(2) When making an order under paragraph (1), theTribunal
may, notwithstanding
rule
1(5) or (6) of the Fast Track
Rules
or the application of the Principal
Rules—
(a) postpone or adjourn any hearing of the appeal or application; and
(b) give directions inrelation
to the conduct of the proceedings."
Stage | Fast-track ![]() ![]() |
Principal ![]() |
Notice of Appeal | Two working days from notice of decision (Schedule, ![]() ![]() |
14 days from notice of decision (2014 ![]() ![]() ![]() ![]() |
Service of ![]() ![]() |
Two working days from service of notice of appeal (Schedule, ![]() ![]() |
28 days from ![]() ![]() (2014 ![]() ![]() ![]() ![]() |
Hearing of appeal by FTT | Three working days after service of ![]() ![]() (Schedule, ![]() ![]() |
No fixed time limits |
Adjournments | Maximum of 10 working days permitted (Schedule, ![]() ![]() |
No fixed time limits (2014 ![]() ![]() ![]() ![]() |
Service of Determination by FTT | Two working days after hearing (Schedule, ![]() ![]() |
No fixed time limits (2014 ![]() ![]() ![]() ![]() |
Application to FTT for Permission to appeal to UT | Three working days from service of determination (Schedule, ![]() ![]() |
14 days after service of the determination (2014 ![]() ![]() ![]() ![]() |
![]() ![]() |
Four working days after FTT sends notice of ![]() ![]() (UT ![]() ![]() ![]() ![]() |
14 days after FTT sends notice of ![]() ![]() (UT ![]() ![]() ![]() ![]() |
Hearing of appeal by Upper ![]() | Two working days after permission granted if decision granting permission sent electronically or delivered personally, otherwise five working days. (UT ![]() ![]() |
No time limits. |
Notice of appeal | One day's notice of hearing date. (UT ![]() ![]() ![]() ![]() |
At least 14 days notice of hearing date ![]() (UT ![]() ![]() ![]() ![]() ![]() |
The grounds of appeal
Background
The judgment of Nicol J
"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 therespondent
to the appeal."
Some introductory points
(i) Checking whether the generaldetention
criteria have been properly applied. These are the sole justification for
detention
post-decision and pending an appeal.
(ii) Makingrepresentations,
where appropriate, that the appellant is unlawfully detained.
(iii) Applying for bail if therepresentations
are
rejected.
These involve 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 therefusal
letter.
(v)
Preparing the appellant's statement, checking it with the appellant and having it signed. The statement will include the appellant's
response
to the
refusal
letter which any expert will need to take into account.
(vi)
Arranging for the translation of any documents produced by the appellant which an expert needs to consider.
(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.
"We usually instruct counsel torepresent
our clients. Therefore whether counsel can attend at the
Detention
Centre prior to the day of the hearing will depend on his or her availability and the need to give notice to the
Detention
Centre in order to book the
rooms.
Where it is necessary for counsel to see the client on the day of the hearing, the position is that there is no privacy in taking instructions, which must be done through a glass in a
room
in which other
representatives
and clients are present. In addition, clients are brought to court only about 45 minutes before the hearing, meaning there is not always enough time to complete the conference before the hearing begins."
The court's approach to the vires
of the FTR
"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 of 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 Thirukumar [1989] 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 [1998] 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."
"That the court will be slow to find that a system is inherently unfair and therefore unlawful is illustrated byRefugee
Legal Centre itself, where the court had evident concerns about potential
rigidity
in the system but concluded that so long as it operated flexibly it could operate without an unacceptable
risk
of unfairness."
The safeguards relied
on by the SSHD and the Lord Chancellor
Discussion
The relevance
of the
role
of the SSHD in the process
Conclusion
Lord Justice Briggs:
Lord Justice Bean: