The fact that the Detained Fast Track asylum appeal process was systemically unfair doesn’t mean it was automatically unfair in every case decided under it, according to the Supreme Court. The case is TN (Vietnam) [2021] UKSC 41.

TN is a Vietnamese asylum seeker who first came to the UK in 2003 and still has an outstanding claim for asylum as a victim of trafficking. She speaks of many appalling experiences in between, including being “raped several times by a man claiming to help her reach the UK”. For the purposes of legal analysis, though, the most relevant part of TN’s situation was the rejection of her third claim for asylum, on the basis of religious persecution, in 2014.

Her case was heard under an accelerated procedure known as the Detained Fast Track. The speed with which this process operated meant that TN was detained in late July 2014, interviewed about her asylum claim on 12 August, refused asylum on 14 August, appealed on 16 August and had that appeal rejected on 22 August.

The High Court ruled the Detained Fast Track system to be unlawful in 2015: Detention Action v First-Tier Tribunal (Immigration and Asylum Chamber) & Ors [2015] EWHC 1689 (Admin). The Court of Appeal upheld that decision later in the year.

The question for the Supreme Court was: what are the consequences of the system’s unlawfulness for people like TN who had an appeal decided under it? She argued, among other things, that “the systemic unfairness inherent in the [Fast Track Rules] 2005 meant that the determination of her appeal was automatically also of no legal effect”.

The Supreme Court unanimously found for the government, albeit over the course of two separate judgments. Lady Arden held that:

The fact that the FTR 2005 were held to be structurally unfair does not mean that the hearing was unfair when the rules are applied to her particular case. The position is analogous to saying that an institution is institutionally unfair or biased. An institution can be institutionally unfair or biased without every single person within it having the same approach or attitude or every single person who comes into contact with the institution being treated in an unfair or biased way.

Likewise, Lord Sales pointed to “the conceptual distinction between the question whether the FTR 2005 were ultra vires and the question whether a decision in an individual case was procedurally unfair”.

In addition to the strictly legal rationale, Lady Arden accepted the Home Office submission that it would be a right faff if many old asylum cases had to be reopened: “automatic nullification would create great uncertainty for many years to come, which may in some cases affect not just the appellant but third parties… it would undermine confidence in the legal system if automatic nullification were the result”.

Both justices also gave enthusiastic endorsement to the “impeccable” reasoning of Lord Justice Singh in rejecting TN’s arguments at Court of Appeal stage. This includes Singh LJ’s guidance on what someone would have to do in order to demonstrate that the Fast Track rules operated unfairly in their particular case (“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”.)

Nor did the court think that, on the facts of the case before them, there had been any actual unfairness to TN. Lady Arden again:

The appellant has not complained of any particular act in the course of the hearing or about the way the judge handled the appeal. Likewise, there has been no complaint about the quality of the reasoning in the decision. As Lord Dyson said, tribunal judges could be relied on to conduct the trials fairly within the rules.

The upshot of today’s decision, then, is that an asylum appeal rejected under the structurally unfair and unlawful Detained Fast Track system is not automatically, nor even presumed, unfair and unlawful in its turn.  

The Helen Bamber Foundation, which intervened in the case alongside Detention Action, has however released a statement (pdf) saying that “although automatically setting aside determinations would have in particular helped survivors of human trafficking and torture, this judgment need not deter people who have ongoing asylum claims from applying to have an unfair Detained Fast Track decision set aside. The Court acknowledged that a significant number of appeals will have been unfairly heard”.

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