The rules used to fast-track TN’s asylum appeal were later held to be structurally unfair. Did that invalidate every decision made under them, or did TN have to show how the procedure affected the fairness of her own hearing?
TN’s asylum appeal was dismissed by the First-tier Tribunal under the 2005 fast-track rules. She later challenged the validity of the tribunal’s decision after similar rules had been held unlawful.
She also made a later claim based on alleged trafficking. That raised matters distinct from the claim the First-tier Tribunal had decided.
The challenge to the fast-track decision
In earlier litigation known as DA6, the Court of Appeal held that the Fast Track Procedure Rules 2014 were structurally unfair, unjust and ultra vires. Ouseley J held that the 2005 Rules were similarly ultra vires, and there was no appeal against that conclusion. He also quashed the Secretary of State’s refusal to treat TN’s later submissions as a fresh claim. He rejected, however, her argument that the tribunal decision was automatically of no effect, and he found that the hearing had not been unfair in her case. The Court of Appeal upheld him. Singh LJ explained that rules may be unlawful because they create an unacceptable risk of unfairness in a significant number of cases without every individual decision being unfair. The tribunal’s jurisdiction came from section 82 of the Nationality, Immigration and Asylum Act 2002, not from the procedural rules, and unfairness had to be shown on the facts.
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Singh LJ also identified non-exhaustive considerations for future applications: a high degree of fairness is required; the risk identified in DA6 should be kept in mind; there is no presumption either way, so a causal link between that risk and the individual case must be examined; and finality matters, including delay and whether later evidence was really prompted by the accelerated procedure. The ultimate question was whether the procedure was unfair in the particular case.
The arguments on appeal
TN argued that the systemic unfairness of the 2005 Rules automatically nullified the tribunal decision, or that a presumption of unfairness should apply where features identified in DA6 were present. She also argued that the accelerated timetable had a particular impact on a possible trafficking claim, because victims may not immediately disclose what happened and may need time for medical and other evidence. The Secretary of State and Lord Chancellor replied that the system’s invalidity did not establish unfairness in every case, that TN had been represented and had sought no adjournment, and that her trafficking allegations were a later and different claim.
No automatic nullification
Lady Arden, with whom Lord Briggs and Lord Stephens agreed, rejected automatic nullification. Structural unfairness in a set of rules does not mean that every hearing conducted under them is unfair. TN had a right to a fair hearing, but not an additional right to have that hearing conducted under rules that were not systemically unfair. The tribunal retained jurisdiction under the 2002 Act so long as it acted fairly. If following the rules made the individual determination unfair, it should be set aside; otherwise it was valid. A tribunal decision remains effective until set aside, and automatic nullification would undermine finality and certainty, potentially for third parties as well.
The court did not accept that judicial-bias cases required a different result. Apparent bias is a defect that cannot be purged and persists throughout the hearing, whereas an appellant can identify the particular respect in which a fast-track hearing was unfair. Nor did the loss of an opportunity in another immigration case assist TN: she could not show that the rules had prevented her from developing the claim she actually advanced before the tribunal. Her later trafficking allegation was a different claim.
Lord Sales, with whom Lord Lloyd-Jones, Lord Briggs and Lord Stephens agreed, reached the same conclusion. Section 82 conferred jurisdiction and impliedly required fairness in the individual case. A person alleging that a tribunal decision is void must establish that case; there is no presumption of unfairness merely because the 2005 Rules applied. A claimant in judicial review is also expected to proceed with reasonable promptness.
Fairness on the facts
The courts below had examined the conduct of the hearing, the opportunities to seek more time or to leave the fast track, and the timing and relevance of subsequent evidence. The Supreme Court found no basis to disturb their conclusion that the accelerated timetable had not been shown to make the particular appeal unfair.
The later trafficking claim had to be dealt with separately. Its existence did not establish that the tribunal had been unable to determine fairly the case actually advanced before it.
Verdict: The Supreme Court unanimously dismissed TN’s appeal. The First-tier Tribunal determination stood. The separate trafficking claim was outstanding at the time of judgment and the Court expressed no view on its merits.
