ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Ouseley
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PETER JACKSON
LORD JUSTICE SINGH
| The Queen (on the application of TN (Vietnam))
The Queen (on the application of US (Pakistan))
|- and -
|Secretary of State for the Home Department
Ms Nathalie Lieven QC and Ms Charlotte Kilroy (instructed by Duncan Lewis) for US (Pakistan)
Mr Robin Tam QC and Ms Natasha Barnes (instructed by the Government Legal Department) for the Secretary of State for the Home Department
Ms Julie Anderson (instructed by the Government Legal Department) for the Lord Chancellor
Hearing dates: 23 - 25 October 2018
Crown Copyright ©
Lord Justice Singh:
"Where an immigration decision is made in respect of a person he may appeal to the Tribunal."
"An appeal to the Tribunal may only be instituted by giving notice of appeal against a relevant decision in accordance with these Rules."
Factual background of TN
Factual background of US
Background to this litigation
The judgment of Ouseley J
(1) Does the nullification of the 2005 Rules automatically, and without the need for an application to a court of competent jurisdiction, nullify the appeal decision?
(2) Is the court of competent jurisdiction obliged to quash or set aside the appeal decision on an application being made to it? The fact that his answers to Questions (1) and (2) were "no" gave rise to three further issues.
(3) To which body, the FTT or the Administrative Court, should the application be made?
(4) What approach should it adopt to the grant or refusal of such an application?
(5) What is the effect of quashing or setting aside of the appeal decision on subsequent decisions, or of not doing so?
The Appellant's Grounds of Appeal
(1) The Judge erred in finding that the appeal decisions made under the 2005 Rules are not automatically a nullity.
(2) If they are not a nullity, the Judge erred in setting out the approach that a court should take to an application either to quash them or have set them aside, in particular at para. 114 of his judgment.
(3) The Judge erred in concluding that there had not been procedural unfairness on the facts of TN's case.
The Appellants' submissions
a. Her personal credibility was attacked by the Secretary of State, and the appeal was dismissed on adverse credibility grounds.
b. Hers was a legally and factually complex case.
c. She had made an application for flexibility in the timetable and to remove her case from the DFT, which was dismissed.
d. The independent evidence of rape, torture, human trafficking and PTSD diagnosis was not obtained during her DFT appeal.
The submissions for the Secretary of State
The first issue
(1) Asylum appeals determined under procedural rules which are declared to be ultra vires as structurally unfair and unjust are void, a nullity and of no legal effect.
(2) Such appeals cannot be treated as a lawful and valid determination of the asylum appeal and any subsequent decisions will themselves be unlawful.
(3) Adverse appeal determinations made under ultra vires rules should be set aside by the Court.
(4) Alternatively, adverse appeal determinations cannot be lawfully and fairly relied upon by the Secretary of State in re-consideration of asylum claims and in making decisions to remove asylum claimants from the UK without a fresh right of appeal and in detaining them.
(5) The contention to the contrary should be rejected as being contrary to basic principle and also the rule of law.
"An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."
That case concerned a statutory time limit and a partial ouster clause, which was held by the House of Lords to be effective even though, on a strict view of the ultra vires doctrine, it might have been said that a void decision is and always has been a nullity and therefore can be ignored.
"It would … be inconsistent with the doctrine of ultra vires as it has been developed in English law as a means of controlling abuse of power by the executive arm of government if the judgment of a court in proceedings properly constituted that a statutory instrument was ultra vires were to have any less consequence in law than to render the instrument incapable of ever having had any legal effect."
"… Lord Diplock confirmed that once it was established that a statutory instrument was ultra vires, it would be treated as never having had any legal effect. That consequence follows from application of the ultra vires principle, as a control on abuse of power; or, equally acceptably in my judgment, it may be held that maintenance of the rule of law compels this conclusion."
"The best explanation that I have seen is by Dr. Forsyth who summarised the position as follows in '"The Metaphysic of Nullity' – Invalidity, Conceptual Reasoning and the Rule of Law,' at p.159:
'it has been argued that unlawful administrative acts are void in law. But they clearly exist in fact and they often appear to be valid; and those unaware of their invalidity may take decisions and act on the assumption that these acts are valid. When this happens the validity of these later acts depends upon the legal powers of the second actor. The crucial issue to be determined is whether that second actor has legal power to act validly notwithstanding the invalidity of the first act. And it is determined by an analysis of the law against the background of the familiar proposition that an unlawful act is void.' (Emphasis supplied.)"
"Further support for the relative, as opposed to an absolute, view of voidness can be found in Boddington … in the opinion of Lord Browne-Wilkinson, at p.164, and in the opinion of Lord Slynn of Hadley, at p.165."
"… Even if the order should not have been made in the first place, a person may be liable for any breach of it committed before it is set aside. …"
See also the citations from other cases and the analysis set out by Richards LJ at paras. 28-32.
The second issue
"Even where some such challenge is permitted, for it to be successful there would also have to be a basis for holding that the decision was unfair beyond that it was reached under the FTR 2005. There is no presumption of unfairness in relation to appeal decisions under the 2005 FTR. The basis must be evidenced by reference to disadvantages, specific to the case, which the FTR timetable caused but which the Principal Rules timetable and practice would have avoided, and which led to an unfair process. A high standard of fairness is required. The SSHD might be able to show that there was no unfairness in reality. This is not the same at all as requiring the appellant to show that the result would have been different under a different regime; that is not required. But the claim may require greater justification where no applications for transfer out of the fast track or for adjournments have been made, and where no attempt has been made to advance claims or circumstances based on vulnerability, or if no issues about fairness have been raised during the appeal, or if the evidence which was said to be missing is not provided as part of a fresh claim made reasonably swiftly after the appeal concluded. The points I have referred to in relation to the 'interests of justice' in the F-tT would also be relevant in judicial review cases as to whether or not time should be extended, and relief granted, if that were a route to relief available for challenging appeal decisions."
"The SSHD might be able to show that there was no unfairness in reality."
Furthermore, it is clear that Ouseley J did not fall into the error (as suggested on behalf of the Appellants) of not appreciating the importance of procedural fairness irrespective of the outcome. He said:
"This is not the same at all as requiring the appellant to show that the result would have been different … that is not required."
(1) A high degree of fairness is required in this context.
(2) What the Court of Appeal said in DA6 should be borne in mind: that the 2005 Rules created an unacceptable risk of unfairness in a significant number of cases. Depending on the facts it may be that the case which the court is considering is one of those cases.
(3) There is no presumption that the procedure was fair or unfair. It is necessary to consider whether there was a causal link between the risk of unfairness that was created by the 2005 Rules and what happened in the particular case before the court.
(4) It should also be borne in mind that finality in litigation is important. There may be a need to ask how long the delay was after the appeal decision was taken before any complaint was made about the fairness of the procedure. There may also need to be an examination of what steps were taken, and how quickly, to adduce the evidence that is later relied on (for example medical evidence) and whether it can fairly be said that in truth those further steps were taken for other reasons, such as a later decision by the Secretary of State to set removal directions. This may suggest that there is no causal link between the risk of unfairness that was created by the 2005 Rules and what happened in the particular case before the court.
The third issue
"141. I am not persuaded that the appeal decision was unfair. There was no real basis for contemplating that she was a trafficked woman, in the light of her immigration history, the absence of any indication from her that she had been trafficked despite her knowledge of the asylum system and the risk of return on the story she had given. The fact that she had scarring did not, without more, mean that there was a need for a rule 35 report. She had been seen by the detention centre GP. I agree with Ms Barnes that a number of indicators, such as evading authorities, are consistent with not wanting to be removed from the UK. Merely asking to be removed from the DFT proves nothing. So I see nothing in her presentation in the DFT to show that she should not have been in it at all.
142. She was represented throughout by solicitors. She made no application for a rule 35 report. No adjournment was sought so that an appointment could be obtained with the Medical Foundation for example. Transfer out was not sought from the immigration judge. No adjournment was sought in order to obtain medical evidence of any sort. There was no indication either made expressly or noted by the immigration judge from observation, that the issues which were raised could not be dealt with in that time frame, or that further evidence, oral or documentary, was awaited or even obtainable. The possible relevance of what happened on the journey to the UK was not pursued. The immigration judge could assess the two men present who gave evidence, knowing that one was alleged to be a boyfriend. Such further evidence as came did not come within the time-frame that the application of the Principal Rules would have permitted, but was first presented over a year after the appeal decision. There is no basis for supposing that the evidence would have been relevant to whether her claim as advanced to the SSHD or on appeal was credible. There is no evidence that she would have presented a completely different claim if only she had had more time in which to produce medical evidence of the sort she did a year later. I note what is said in DA2  EWHC 2525 (Admin) at  that applicants' solicitors said that they were often preparing fresh claims before the substantive appeal was finally determined since they anticipated its receipt but not quickly enough for the DFT timetable. She made no complaint about the fairness of the appeal hearing or procedure in her first judicial review proceedings. The further representations leading to the August decision had provided no evidence that the appeal decision was unfair. It was only in these judicial review proceedings lodged on 20 August 2015 that the fairness of the appeal proceedings was raised. Accordingly, I would not have quashed the appeal decision. This does not, formally at any rate, dispose of the application before the F-tT to set aside the appeal decisions."
"I have concerns that this detainee may have been the victim of torture."
(1) The claim for asylum was originally based on alleged persecution on religious grounds.
(2) TN had previously been removed from the UK, with multiple instances of absconding, and an immigration claim had been based on her seeking a better quality of life.
(3) TN was encountered in a nail bar in Rotherham and attempted to evade officers. It is notorious that nail bars can be associated with trafficking.
(4) TN was described on her arrival at Yarl's Wood on 30 July 2014 as being "fit and well" and no scars were noted.
(5) TN's claim that she had been tortured on the way to the UK was raised in her substantive asylum interview. This was not pursued even though she had legal representation at the hearing. There was at no time up to that point reference to sexual exploitation within the UK although there was reference to beatings in a Vietnamese prison.
(6) TN had had a miscarriage in the UK.
Peter Jackson LJ: