Supreme Court rules that Tribunal decision made under inherently unfair procedure rules was fair

The Supreme Court this morning handed down judgment in R (TN (Vietnam) v Home Secretary and the Lord Chancellor [2021] UKSC 41 in a long awaited ruling affecting the fate of thousands of tribunal decisions made under the unlawful First-tier Tribunal (Detained Fast Track) Procedure Rules 2005 (SI 2005/506).  The High Court had declared those rules to be ultra vires on the grounds that they were structurally unfair and unjust because the relevant timeframes were too tight, and the safeguards insufficient, to mitigate the unfairness caused by those rules ([2017] EWHC 59 (Admin), applying R (Detention Action) v First-tier Tribunal [2015] 1 WLR 5341).

TN is a victim of trafficking whose asylum claim was processed under Detained Fast Track timeframes.  Her asylum claim was refused by the Home Secretary, she remained in detention, and her appeal to the First-tier Tribunal (FTT) under the 2005 Rules was dismissed.  She later applied for the FTT decision to be quashed in the light of the Detention Action case, above.

The issue for the Supreme Court was whether the FTT’s determination of her appeal under inherently unfair and unlawful procedure rules rendered its decision unfair and unlawful.

TN’s appeal was supported by a joint intervention by the Helen Bamber Foundation and Detention Action, whose focus included the handling of TN’s case by the Home Secretary and the FTT, having regard to the indicators of trafficking that were apparent.

The Supreme Court dismissed the appeal, ruling that before the FTT decision could be found to be a nullity, it had to fall outside the jurisdiction conferred by section 82(1) of the Nationality Immigration and Asylum Act 2002.  It would do so if the decision was not arrived at fairly in all the circumstances of the individual case [85].  An analogy drawn by TN with the law on apparent bias was rejected [87]. 

Guidance given by the Court of Appeal as to the relevant factors to be considered when deciding whether a FTT decision reached under the 2005 Rules would be unfair was approved: [89]-[91]. 

In the light of the Court’s judgment, cases in which an immigration decision is made in reliance on a determination of the FTT made under the 2005 Rules could potentially be open to challenge, where issues around timing can adequately be addressed (see the judgment at [91]). 

Judgment can be found here.