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Devaseelan rules apply to Detained Fast Track judgments


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The Detained Fast Track appeal system was found to be inherently unfair in Lord Chancellor v Detention Action [2015] EWCA Civ 840. But the impact of this bombshell decision was, over time, mitigated by two factors. Firstly, those who had appeals dismissed under this route had to apply for their case to be re-opened. Secondly, the courts decided that not all Fast Track decisions were necessarily unfair and unlawful, even though the rules generated a risk of unfairness.

R (MW) v Secretary of State for the Home Department (Fast track appeal: Devaseelan guidelines) [2019] UKUT 411 (IAC) develops this second point further. The case confirms that the Devaseelan rules apply to First-tier Tribunal decisions made under the Fast Track system. This means that in any re-hearing, the tribunal can take as a “starting point” the findings made by the previous immigration judge, despite them being made under procedural rules later found to be unlawful.

The official headnote

(1) The fact that an appeal was decided pursuant to the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 does not mean that the weight to be attached to the decision necessarily falls to be materially reduced, when applying the Guidelines in Devaseelan v Secretary of State for the Home Department [2002] UKAIT 702. 

(2) Under those Guidelines, the first judicial decision is “the starting point” for the subsequent judicial fact-finder. The “starting point” principle is not a legal straitjacket. It permits subsequent judicial fact-finders to depart from the earlier judicial decision on a principled and properly-reasoned basis.

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Bilaal Shabbir

Bilaal is an Advocate at the Scottish Bar and practises in both Scotland and Jersey, focusing on public law, commercial dispute resolution and offshore trust litigation. He is a Panel Member on the Football Association’s (FA) National Serious Case Panel.