Natasha Barnes, led by Robin Tam QC, appeared for the Secretary of State in this case concerning the status of 10,000 asylum appeals heard under the 2005 Fast Track Rules (“FTR 2005”). Those rules were in force between 2005 and 2014, and governed the procedure by which detained individuals could appeal against the refusal of their asylum.
In TN (Vietnam) & US (Pakistan) [2017] EWHC 59 (Admin), Ouseley J held that those rules were procedurally unfair and thus ultra vires, but he declined to find that all appeals heard under those rules fell to be quashed. TN & US appealed that decision and also applied for judicial review of the First-tier Tribunal’s decision that it did not have jurisdiction to set aside appeals heard under the FTR 2005. During a 3 day hearing, the court therefore sat both as the Court of Appeal to hear the appeal, and as the Divisional Court to hear the judicial review claim.
The Court found for the Secretary of State on all issues, dismissing both TN & US’ appeals and their judicial review claims. In so doing, the court ruled that:
- Appeals heard under ultra-vires procedure rules were not automatically rendered a nullity. The fact that procedure rules created an “unacceptable risk” of unfairness did not necessarily mean that ever case decided pursuant to those ultra vires rules were unfair.
- What instead had to be assessed was whether there was unfairness on the facts of an individual case. Ouseley J was correct to emphasise the need for finality in litigation. Time for making a judicial review application began to run from the date of the appeal decisions under challenge.
- The FTT did not have jurisdiction to set aside appeals heard under the FTR 2005. An individual’s remedy was through judicial review.
A link to the court’s two judgments can be found here and here, as well as on Lawtel (paywall) here. The Appellant now seeks permission to appeal to the Supreme Court.
