The case concerns a challenge, brought by Detention Action in the High Court of England and Wales (and the latest in a series of challenges), to the legality of the detained appeal process created by the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 SI 2014 No. 2604 (the FTT Rules).
In most cases (baring the non-suspensive appeals process) when the Secretary of State for the Home Department refuses an application for asylum, there is a right of appeal to the First-tier Tribunal (Immigration and Asylum Chamber) (the Tribunal) before removal takes place. The procedure to be followed in the Tribunal is governed by the FTT Rules. Two different regimes are created by these Rules: the ordinary procedure or ‘the Principal Rules’ and ‘the Fast Track Rules’ (the FTR) which establish a fast track appeals process.
The FTR applies only to detained asylum-seekers and imposes significantly shorter time limits than those imposed by the Principal Rules. Under the Principal Rules, the Tribunal must receive a notice of appeal no later than 14 days after the person concerned is sent the decision against which an appeal is brought. Under the FTR, the notice of appeal must be received within just 2 working days. Under the Principal Rules there is no time limit for listing an appeal hearing, under the FTR an appeal is listed just 3 working days after the provision of the Respondent’s evidence.
This means that the hearing of a Fast Track appeal will usually be within just 7 working days of the decision to refuse asylum. This leaves the applicant’s legal representative, if they have one, limited time to review a refusal decision and, where necessary, take instructions, contact witnesses, instruct an expert, translate documents and secure relevant country evidence etc. Such timescales severely prejudice all asylum-seekers but particularly those with more complex claims (who might require expert evidence), or those with (relatively) straightforward claims but difficulties engaging in the process, because of, for example, their experiences of torture, sexual violence or detention. Whilst an application can be made for someone to be taken out of the fast track, this has to be prepared simultaneously with the appeal itself (thereby adding considerably to the legal representative’s work) as the appeal will proceed on the truncated timescale if the application is unsuccessful.
Detention Action successfully challenged the FTR on the grounds that they are ultra vires, that they are beyond the power to make procedural rules which Parliament conferred (s22, Tribunals Courts and Enforcement Act 2007). Mr Justice Nicol of the High Court concluded that the FTR created ‘structural unfairness’ which put the appellant at a ‘serious procedural disadvantage’, a disadvantage that arises not because of anything that the asylum-seeker has ‘done’, or because the Tribunal itself thinks that the FTR are a fair way to proceed, but which arises because the asylum-seeker’s opponent, the Home Office, has decided that this is what should happen paras (52-80 of the judgement).
This case raises a number of important issues of which just three can be discussed briefly here. Firstly, whilst Mr Justice Nicol made an order quashing the FTR he stayed its implementation pending the Lord Chancellor’s appeal. This means that asylum-seekers in detention will continue to be subjected to the ‘serious procedural disadvantage’ that the rules produce, the impact of which, in terms of suffering and potential wrongful refusal, are difficult to describe adequately or indeed overstate.
Secondly, the position of the Tribunal as an independent judicial body is called into question by this judgment; just why and how it adopted a set of rules which it itself did not think was fair is an issue that requests proper investigation.
Finally, whilst Article 6 of the European Convention of Human Rights is not engaged by decisions on asylum or removal, Mr Justice Nicol found that this was ‘immaterial since the common law, on which our notions of procedural fairness are based, similarly prides itself on conferring rights which are practical and real’ rather than those which are ‘theoretical and illusory’ (para 56). In the current political climate, in which repeal of the Human Rights Act 1998 is a Government objective, it is interesting to observe and speculate on the ‘power’ or ‘ability’ of the common law to guarantee human rights.