Supreme Court considers asylum claim decided under quashed fast track rules
26 October 2021
In 2015, the Court of Appeal found that the fast-track procedure rules for appeals against the refusal of some types of asylum claim (the FTR) was “structurally unfair, unjust and ultra vires” (R (Detention Action) v First-tier Tribunal (Immigration and Asylum Chamber)  EWCA Civ 840;  1 WLR 5341, known as DA6). The Court of Appeal quashed the FTR because this structural unfairness “created a risk that the applicants would have inadequate time to obtain advice, marshall their evidence and properly present their cases”, which “created an unacceptable risk of unfairness in a significant number of cases”.
Six years later, the question in R (on the application of TN (Vietnam)) v Secretary of State for the Home Department  UKSC 41 was straightforward: where a decision had been taken under the FTR, should it also be quashed, or must the person who was subject to the decision demonstrate that the decision itself was unfair, rather than merely issuing from an unfair system?
The High Court, Court of Appeal and Supreme Court all answered unequivocally that structural unfairness was not enough to quash an individual decision. Unfairness on the facts had to be found, or the decision would stand.
Background and Decisions Below
TN had, as the court acknowledged, a complicated procedural history, involving a number of applications for asylum, all of which (of those which had been determined at the time of trial) had been rejected. In hearings in those applications, TN had been represented by counsel. However, successive decisionmakers found TN’s claim not to be credible, and on 22 August 2014, the First-tier Tribunal (FTT) rejected her appeal. It was this rejection, decided as it was by a tribunal following the procedural rules in the FTR, which TN sought to challenge in this case.
One reason TN’s evidence was not believed was that it was inconsistent, giving different dates at different times for her mother’s death, and changing the basis of her application for asylum without explaining fully the reasons for the changes. This raised a question plainly discussed, but in the end not legally consequential, of the approach taken to evidence of trafficking, given that trafficking victims frequently change their stories, partly because they will often not know (in terms) that this is what they are (see paragraphs -).
In a detailed judgment, Ouseley J rejected TN’s application, upholding the Tribunal’s decision. His judgment involved a detailed review of the history of TN’s case, after which he concluded that the Tribunal’s decision was not tainted by the structural unfairness of the FTR.
In the Court of Appeal, Singh LJ gave the leading judgment (with whom Sharp and Peter Jackson LLJ agreed), holding that the “fundamental reason” that the application had to fail was that there was “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 legal lens through which this fundamental conceptual distinction found expression was the principle of jurisdiction. Singh LJ considered two bases on which the FTT could fail to have jurisdiction, rejecting both. First, he held that the ultra vires nature of the FTR did not divest the FTT of jurisdiction in the “pure and narrow sense” of having “the legal authority to decide a question”. The Tribunal’s jurisdiction was not created by the FTR but rather by statute; the FTR was “merely a rule which regulates procedure and form”.
The second basis on which the Tribunal might have lost jurisdiction was in the “post-Anisminic understanding of jurisdiction … that a body has acted in a way which is unlawful, including (for this purpose) in a way which is procedurally unfair”. This too was rejected: the Tribunal had not acted in such a way; even though the FTR had created a structural risk that it might, that risk had not eventuated.
Singh LJ went on to set out four factors which the court should take into account when the fairness of an individual decision made under the FTR was challenged on the basis of unfairness. These were, paraphrasing: (1) a high degree of fairness is required in the context of asylum applications; (2) the FTR created an unacceptable risk of unfairness in a significant number of cases; (3) there is no presumption that the procedure in any one case was fair or unfair and what is necessary is a causal link between the risk of unfairness created by the FTR and what happened in a particular case; and (4) the finality of litigation is important, and as such delay is relevant, as are questions as to what steps were taken, and how quickly, to adduce evidence later relied on.
TN’s Arguments on Appeal
TN put forwards three arguments on appeal. These were, in turn:
Ground 1: that the connection between the hearing of the appeal and the systemic failures in the rules was itself sufficient to justify setting aside the decision. This argument was made by analogy to cases (including Millar v Dickson  UKPC D4) where orders made by judges who ought not to have sat on a case are set aside without enquiring as to whether the trial was unfair.
Ground 2: that if Ground 1 was rejected, the court ought to adopt a presumption of unfairness (contrary to Singh LJ’s third factor) not susceptible to disproof by enquiry (i.e. a legal rather than evidential presumption); it was sufficient unfairness that the appellant was compelled to submit to an unfair process.
Ground 3: alternatively, as some of the features identified as creating risks in DA6 were present in the particular case (e.g. accelerated timetable and a large volume of tasks facing legal representatives), this should be sufficient to found unfairness (as opposed to the necessity for a causal link, as identified by Singh LJ).
Arguments in Response
The Secretary of State (whose junior counsel was Natasha Barnes of 1 Crown Office Row) responded to the first ground by arguing that there was a distinction between judicial bias cases, where a whole system is unfair and cases must be reheard, and a situation where a case might be unfair as a result of a structural unfairness.
The latter two grounds were dealt with similarly: there was no room for a presumption of unfairness where it is possible to show that on the circumstances of a particular case the there was no unfairness. Merely identifying the presence of factors giving rise to a risk of unfairness (ground 3) is also insufficient, as it gives no weight to whether the risk eventuated.
The Court’s Decision
Lady Arden (with whom Lord Briggs and Lord Stephens agreed) considered that TN’s case boiled down to two contentions: that systemic unfairness justified automatic nullification of any individual decision, and that TN’s own appeal was itself unfair. Rejecting the first, she said that the position is
analogous to saying that an institution is institutionally unfair or unbiased. 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 in contact with the institution being treated in an unfair or biased way.(para 53)
Adopting the Anisminic jurisdiction analysis from below (and from Lord Sales’ concurring judgment), she held that TN’s case was “completely undermined” because “the hearing by the FTT could still be fair… [and] the FTT had jurisdiction in a case where the hearing was shown to be fair” (para 55). Because of this, there was no automatic nullification. A decision will only be set aside where the appellant can establish that it ought to be set aside.
Rejecting the judicial bias analogy, Lady Arden held that the bias in Millar was “a defect which could not be purged”, continuing as it did throughout the hearing (para 60). She cited Lord Clyde in that case who said that “there is always room for an uneasy fear that there might have been some improper evidence affecting the mind of the judge where he lacks independence” (para 60). The same, Lady Arden said, could not be said in this case, where hearings were attended by both parties and their representatives, and TN had the opportunity to identify precisely how her case was unfair – and no specific allegations of unfairness had been made, either about the way the judge had handled the appeal, or about the reasoning in the FTT’s decision.
Lady Arden also rejected the charge of actual unfairness, upholding Ouseley J’s (and Singh LJ’s) detailed consideration of the facts.
Concluding, Lady Arden observed that this case was an example of a failure to meet Singh LJ’s test in his fourth factor: that of causation between the FTR and any unfairness. She endorsed Singh LJ’s factors for future cases, stating that the causal test was key.
Lord Sales (with whom Lord Lloyd-Jones, Lord Briggs and Lord Stephens agreed) agreed the appeal should be dismissed. His judgment was based squarely in an adoption of Singh LJ’s conceptual distinction (described above) between whether the FTR as a whole were ultra vires, and whether any one case was unfair.
Lord Sales agreed with Lady Arden’s position on the judicial bias cases, and adopted the Anisminic approach to jurisdiction, finding that the FTT was within its jurisdiction. He also agreed with the first instance court’s determination that there had been no unfairness on the facts.
TN’s case was ultimately a simple one, resting on the one key conceptual distinction: the distinction between unfairness at the systemic level, and unfairness on the individual level. The point that decided the case, convincing every judge from the court of first instance to the Supreme Court without a single dissent as to result or reasoning, was that where an individual decision can be shown to be fair, it is not possible to impugn that demonstrated fairness by pointing to a wider set of decisions of which the fair decision forms a part, and demonstrating the unfairness of the wider set.
The comparison with the judicial bias cases, where it is not possible to show that a specific case was fair, is instructive. The reason for this, addressed only briefly in the judgments (though presumably argued extensively in court) is that “uneasy fear” that we cannot know quite why a biased judge makes the decision they do. The risks under the FTR are more objective (shortness of time, difficulty of gathering evidence etc), and where it can be shown none of those risks eventuated, the uneasy fear is dispelled – we can, so the reasoning goes – be sure.
The decision does, however, leave some degree of uneasy fear. Not that it has gone wrong in law – the reasoning is, as Lord Sales observed of Singh LJ’s approach – unimpeachable. But there is something of a practical sleight of hand involved in moving from the principled necessity that where an individual case can be shown to be fair it ought to stand to the reality that the burden of proof is in fact on the appellant to show that their individual case was unfair.
The emphasis on causation and on demonstrating the eventuation of risk means that there is every possibility an appellant will not be able to show that their individual decision was unfair, even in a situation where there is an admittedly heightened risk that it was. This is of course an evidential matter common to many areas of litigation, but given the special evidential difficulties facing victims of human trafficking (discussed in Lady Arden’s judgment), courts should be quick to recall Singh LJ’s instruction in his four-factor test that there is no more a presumption of fairness than of unfairness. How the lack of a presumption of fairness fits in practice with the appellant’s burden to prove unfairness on the facts remains to be seen.
Jasper Gold is a pupil barrister at 1 Crown Office Row.
Natasha Barnes, also of 1 Crown Office Row, was junior counsel to the Secretary of State in this case. She was not involved in the writing of this post.