24 Oct 2016, 42 mins ago

In an important decision, Detention Action v First-tier Tribunal (Immigration and Asylum Chamber) and Others [2015] EWHC 1689 (Admin), Nicol J has declared the Fast Track Procedure Rules to be unlawful, in that they exceed the power to make procedural rules conferred by Parliament under section 22 of the Tribunal Courts and Enforcement Act 2007 (the 2007 Act).

When an asylum application is made, the Secretary of State for the Home Department (SSHD) decides whether to determine the application under a particularly speedy process called Detained Fast Track (DFT). As the name suggests, DFT applicants are detained pending the determination of their claims.

If the asylum application is refused, the Secretary of State for the Home Department decides whether any appeal to the First-tier Tribunal (FTT) is to be determined under the normal First-tier Tribunal Procedure Rules (the Principal Rules) or under the Fast Track Rules (FTR). All appellants subject to the FTR will have had their applications decided under the DFT. Appeals under the FTR are subject to much shorter time limits (in particular, only 7 working days between service of refusal and hearing) and the Tribunal has more restricted case management powers than it does under the Principal Rules.

Detention Action argued that the timetable imposed by the FTR is so short and the case management powers of the FTT so curtailed that justice cannot be done. They also argued that it was unfair and contrary to justice that one party (the SSHD) should be able to impose that disadvantage on her opponent.

The Tribunal Procedure Rules, including the FTR, are made by the Tribunal Procedure Committee (TPC) exercising a power granted by section 22 of the 2007 Act. However, section 22(4) of the Act includes an obligation on the TPC in making the Rules to exercise that power with a view to securing that justice is done in proceedings before the FTT and that the tribunal system is accessible and fair. Prior to introducing the most recent (2014) Procedure Rules, the TPC produced a Consultation Paper. Evidence before Nicol J showed that all of those consulted supported the removal of fast-track except the Home Office. In view of the determination of the Home Office to maintain the fast-track, the TPC included the FTR in the 2014 Rules.

Having considered the evidence relating to the problems caused to appellants and their representatives by the FTR, Nicol J found that the TPC had exceeded their power in making, and the Lord Chancellor in allowing, the FTR. He concluded that the FTR contain “structural unfairness”, stating:

57. In my judgment the FTR do incorporate structural unfairness. They put the Appellant at a serious procedural disadvantage. I have summarised above Ms Ghelani’s evidence of the kind of tasks which the representative of an appellant in a Fast Track appeal must accomplish in the 7 working days before the first opportunity to come before Tribunal and argue that the case should be taken out of the Fast Track. I shall assume that the appellant is represented, although that is not always so …

58. The appellant is always detained and, as is obvious, but which Ms Ghelani confirms, the fact of detention places additional obstacles in the way of achieving all that has to be done before the Tribunal hearing. Furthermore, the representative has to prepare simultaneously an application for adjournment or taking the case out of the Fast Track and the substantive appeal itself. The case histories presented by Ms Ghelani do indeed show, as Ms Lieven submitted, that these are real, not just theoretical difficulties for appellants’ lawyers.

59. …. The procedural disadvantage is not because of the client’s dilatoriness, nor because the FTT has decided that this is a fair way to proceed, but because his opponent in the appeal, the SSHD, has decided that this is what should happen.

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.

This judgment is the latest in a series of important rulings obtained by Detention Action in relation to the fast track. However, the judge granted a stay pending an appeal by the Lord Chancellor to the Court of Appeal. Detention Action has expressed disappointment at the grant of the stay which means that the SSHD will be able to continue putting asylum appellants into the fast track, at least for the time being, despite the learned judge’s finding that it is structurally unfair.

It should be borne in mind as well that, even if Nicol J’s judgment is ultimately upheld in the higher courts, past experience shows that the most likely outcome is that the Government will simply rush through primary legislation so that the fast track regime can no longer be challenged in the courts.