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.
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