ON APPEAL FROM THE HIGH COURT OF JUSTICE,
Mr Justice Nichol,
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BRIGGS
LORD JUSTICE BEAN
| THE LORD CHANCELLOR
|- and -
(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
Crown Copyright ©
Master of the Rolls:
The legislative framework
"(1) There are to be rules, to be 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.
(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."
"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."
Unless the Tribunal 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 Track Rules; and
(b) there is an identifiable future date, not more than 10 working days after the date so fixed, upon which the Tribunal 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 Track Rules 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 the Tribunal 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), the Tribunal 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 in relation to the conduct of the proceedings."
|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
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 the respondent to the appeal."
Some introductory points
(i) Checking whether the general detention criteria have been properly applied. These are the sole justification for detention post-decision and pending an appeal.
(ii) Making representations, where appropriate, that the appellant is unlawfully detained.
(iii) Applying for bail if the representations 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 the refusal 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 to represent 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  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."
"That the court will be slow to find that a system is inherently unfair and therefore unlawful is illustrated by Refugee 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
The relevance of the role of the SSHD in the process
Lord Justice Briggs:
Lord Justice Bean: