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Rules under which over 10,000 fast track asylum appeals decided declared unlawful

Rules under which over 10,000 fast track asylum appeals decided declared unlawful

The High Court has ruled in the case of R (On the Applications Of TN (Vietnam) & US (Pakistan)) v Secretary of State for the Home Department & Anor [2017] EWHC 59 (Admin) that over 10,000 asylum appeals had been decided under procedure rules so unfair that the determinations could be set aside. Any unsuccessful asylum seekers affected by these rules will now need to apply to the immigration tribunal to have their decision set aside.

The critical legal question was whether the Court of Appeal judgment in R (Detention Action) v First-tier and Upper Tribunals (Immigration and Asylum Chambers), Lord Chancellor and SSHD [2015] EWCA Civ 840 applied as much to the 2005 fast track rules (FTR) as to the 2014 rules. Ouseley J held that the reasoning applied just as equally to both:

I find it difficult to see how I could, let alone why I should, reach a different view on the vires of the 2005 FTR from that reached by the Court of Appeal on the vires of the 2014 FTR

The 2005 rules were therefore also unfair and a declaration that they were ultra vires (beyond the power granted to the Lord Chancellor to make) was duly made.

The effect of the judgment is that the rules under which determinations were made were a legal nullity. However, this did not mean that the determinations reached by judges in individual cases were automatically also nullities. Where a person whose appeal was previously dismissed under the rules is dissatisfied with that determination, he or she will need to apply to the immigration tribunal for the decision to be set aside. If such an application succeeds, it will have the effect of quashing the determination, meaning that the appeal remains outstanding and a new decision would need to be taken on that appeal.

On the facts of the two individual cases, Ouseley J finds that one of the appeal determinations was unfair and the other was not. The one which was unfair was not quashed as such because that was for the tribunal to do. Subsequent refusals of fresh claims for asylum in both cases were quashed, however, these being matters for the Administrative Court. Because the refusals of fresh claims were quashed, this actually meant that there would be fresh appeals in both cases in any event.

Source: TN (Vietnam) & US (Pakistan), R (On the Applications Of) v Secretary of State for the Home Department & Anor (Rev 1) [2017] EWHC 59 (Admin) (20 January 2017)

Colin Yeo
Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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