Asylum appeals determined under ultra vires Detained Fast Track Procedure Rules are not automatically unfair - unfairness on individual facts of the case is required

Friday 24 September 2021

TN was represented in the Supreme Court by Stephanie Harrison QC, David Pannick QC and Anthony Vaughan and before that by Stephanie Harrison QC and Louise Hooper, both of Garden Court Chambers, in the High Court and Court of Appeal instructed by Ahmed Aydeed of Duncan Lewis Solicitors.

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The Supreme Court has handed down judgment in R (TN (Vietnam) v Home Secretary and the Lord Chancellor [2021] UKSC 41 in a ruling on asylum decisions made under the First-tier Tribunal (Detained Fast Track) Procedure Rules 2005 (SI 2005/506).

The High Court ([2017] EWHC 59 (Admin)) had ruled in the same case and declared those rules to be systemically unfair and unjust and, therefore, ultra vires of the enabling legislation that required a fair appeals process. The time limits were far too short and the safeguards inadequate to remedy the unfairness and constraints of the time limits ([2017] EWHC 59 (Admin)). In doing so the Court followed the judgment of the Court of Appeal in R (Detention Action) v First-tier Tribunal [2015] 1 WLR 5341) which, for the same reasons, had declared and quashed the subsequent Detained Fast Track (DFT) Rules to be ultra vires.

TN’s asylum claim was decided in 2014 under the unfair DFT rules and when she was detained. No appeal to the Upper Tribunal was pursued and she remained in detention. She herself raised the fairness of the process following the Detention Action case in 2015 but faced imminent removal to Vietnam only suspended by the intervention of the Court of Appeal.

TN subsequently obtained medical evidence of scarring and psychological trauma consistent with her past experience of detention and human trafficking and made a fresh claim. She first applied to set aside the DFT appeal in the FTT which was adjourned on the basis that the better forum for authoritative guidance was the High Court and she subsequently lodged judicial review proceedings challenging the vires of the 2005 Rules.

Permission was granted to the Helen Bamber Foundation and Detention Action to intervene. These organisations had the firsthand experience of the systemic failure to ensure a fair opportunity to prepare and present appeals in the DFT system, particularly in the many complex cases which contrary to the published policy, were routinely decided in the DFT.  

The Supreme Court ruled, dismissing TN’s appeal that the fact that the DFT Rules were ultra vires as unfair and unjust did not deprive the FTT of jurisdiction under section 82(1) of the Nationality Immigration and Asylum Act 2002 to hear the appeal and did not render the appeal determined under them automatically unlawful. It was necessary to identify unfairness in the individual case [85]. 

In a disappointing judgment on the importance of procedural fairness and the need to ensure that the system was seen to be fair, as well as substantively fair, in any individual case, the Supreme Court did uphold the Court of Appeal’s test that recognised the “high degree of fairness” required in asylum appeals and the importance of any causal connection between the determination and the structural unfairness and injustice in the DFT Rules [89-91].

On the unusual facts of TN’s case, the Supreme Court did not interfere with the Court of Appeal’s judgment that there was no such causal connection established on the facts in part because reliance on her trafficking claim had been withdrawn at the appeal hearing. The Supreme Court did emphasise, that TN had established in the High Court that a refusal of the fresh claim for asylum made on the basis of fresh medical evidence not before the DFT was unlawful.    

Importantly for the many cases stayed behind TN, the Supreme Court confirmed that she was correct to seek remedy by way of judicial review,  after the 2014 Rules were declared unlawful by the Court of Appeal in Detention Action. [79]. 

After six years of litigation the Supreme Court has now finally given an authoritative ruling that paves the way for the many other stayed cases determined under the unfair and unjust DFT 2005 rules to be considered on their individual facts, applying the Court of Appeal’s test.

Judgment can be found here.

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