The Court of Appeal has ruled that appeal decisions made using the 2005 Fast Track Rules are not necessarily unfair and unlawful, even though the procedural rules generated an inevitable risk of unfairness in a significant number of cases. This means that the potential unfairness in each appeal decision must be considered on a case-by-case basis.

Incredibly, the court also held that delay in raising these issues should be held against asylum seekers, although it acknowledged that a high standard of fairness is required in asylum appeals. TN (Vietnam) v Secretary of State for the Home Department [2018] EWCA Civ 2838 is an extremely disappointing decision which has let the Home Office off the hook for using an obviously unlawful fast track appeal process for nine years.

Background: fallout from the Detention Action case

The Court of Appeal had previously held that the 2014 Fast Track Rules were unlawful because they generated an inevitable risk of unfairness in a significant number of cases. Since the 2005 Fast Track Rules were even more unfair than the 2014 version, this triggered a challenge to appeal decisions made between 2005 and 2014. The High Court ruled that the 2005 Fast Track Rules were unlawful, but refused to quash the appeal decisions automatically and did not quash the appeal decision in TN’s own case.

The issue for the Court of Appeal was whether that approach was correct. The appellants argued that because the rules governing the appeal procedure were unlawful and of no legal effect, it must follow that the appeal decisions were made without jurisdiction and therefore are also of no legal effect.

Appellants must individually demonstrate the unfairness of an unfair system

Lord Justice Singh rejected that argument. He noted that the previous Court of Appeal only found an inevitable risk of unfairness in some cases and even though this might mean a majority or a significant minority, it was still necessary to demonstrate unfairness in each individual case:

The first and fundamental reason for this is that, in my view, there is a conceptual distinction between holding that the Procedural Rules were ultra vires and the question whether the procedure in an individual appeal decision was unfair.

The jurisdiction of the Court to consider the lawfulness of a procedural regime, such as that in the 2014 Rules (which was quashed as a result of the Court of Appeal decision in DA6) is an important one, whose roots can be traced back to the decision of the Court of Appeal in R (Refugee Legal Centre) v Secretary of State for the Home Department [2004] EWCA Civ 1481; [2005] 1 WLR 2219. In order to challenge the entire system of such rules it is not necessary to show that the rules will lead to unfairness in every case. Rather it is the creation by the rules of an “unacceptable risk” of unfairness which founds the ability of the Court to strike them down. This is because it is important that rules which are systematically capable of creating unfairness should not be allowed to stand and should be removed or amended.

However, that does not entail the necessary conclusion that in each and every case decided pursuant to the ultra vires procedural rules a particular decision was itself procedurally unfair.

The conceptual distinction relied on by Singh LJ is flawed. It ignores the fact that the application of lawful procedural rules is fundamental to the operation of a court. The purpose of a court is to resolve disputes in a way that is fair to both sides so that even if one party is dissatisfied with the outcome they cannot reasonably complain about the process. The principle of procedural fairness maintains confidence in decision-making by ensuring compliance with fair rules, like providing reasons or an opportunity to make representations. A speculative, case-by-case approach is inappropriate, particularly in the context of asylum appeals.

Guidance in individual Detained Fast Track appeals

Unfortunately, the court made an even worse decision when providing guidance on whether each appeal decision was unfair. Singh LJ stated:

1.  A high degree of fairness is required in this context.

2. What the Court of Appeal said in DA6 should be borne in mind: that the 2005 Rules created an unacceptable risk of unfairness in a significant number of cases. Depending on the facts it may be that the case which the court is considering is one of those cases.

3. There is no presumption that the procedure was fair or unfair. It is necessary to consider whether there was a causal link between the risk of unfairness that was created by the 2005 Rules and what happened in the particular case before the court.

4. It should also be borne in mind that finality in litigation is important. There may be a need to ask how long the delay was after the appeal decision was taken before any complaint was made about the fairness of the procedure. There may also need to be an examination of what steps were taken, and how quickly, to adduce the evidence that is later relied on (for example medical evidence) and whether it can fairly be said that in truth those further steps were taken for other reasons, such as a later decision by the Secretary of State to set removal directions. This may suggest that there is no causal link between the risk of unfairness that was created by the 2005 Rules and what happened in the particular case before the court.

Principles 3 and 4 are objectionable. For one thing, having already found that the rules generated an inevitable risk of unfairness in a significant number of cases, there should be a presumption that an applicant falls into that category. The government had the responsibility to lay down fair rules for dealing with asylum appeals and failed to do so. In that context, it should be for the government to disprove a presumption of unfairness by demonstrating that a particular appeal was actually fair.

Second, it is outrageous that delay in raising this issue by an asylum seeker should be taken into account. If an appeal decision was unfair then it must be set aside to ensure that the individual is not removed before they have a fair appeal. Delay by an asylum seeker in arguing that the appeal was unfair is irrelevant and the comments by Singh LJ may well be used by first instance judges to question the motivations of applicants.

As a final kick in the teeth, the court also upheld the decision of the High Court not to quash the appeal decision in TN.

No consequences for running an unlawful system

The immediate significance of this appeal is a risk of more unlawful removals in reliance on appeal decisions made in the Fast Track between 2005 and 2014. The wider issue is that the Court of Appeal has given notice to the government that they it set up another unfair Fast Track process without any risk. Even if the system is held to be unlawful, the individual appeal decisions will stand unless the asylum seeker is able to quickly find a lawyer to help them establish procedural unfairness. This is a sad day for a country that prides itself on the fairness of its legal system.