Supreme Court rejects Vietnamese asylum seeker’s appeal based on unfair tribunal procedure law

The appeal on behalf of TN challenged the validity of a decision made under the Fast Track Procedure Rules of 2005 and argued that the rules created structural unfairness in individual immigration appeals. Interventions in the case were made by the Helen Bamber Foundation and Detention Action.

The appeal was heard by Lord Lloyd-Jones, Lord Briggs, Lady Arden, Lord Sales, and Lord Stephen. Lord Pannick QC and Stephanie Harrison QC appeared for the appellant, and Robin Tam QC for the Home Office.

Fell to be quashed

The appellant originally claimed temporary asylum in the UK in 2004 after claiming she was at risk of religious persecution in Vietnam for her Catholic faith. After her claim was refused for non-compliance in April 2004, she came to the attention of the immigration authorities again when she made fresh submissions in April 2011. She was subsequently deported to Vietnam but returned to the UK clandestinely in May 2014.

In her fresh application in 2014, the appellant claimed that she was still at risk of religious persecution and that she had been sexually abused on returning to Vietnam. Her claim was judged to be suitable for the Detained Fast Track procedure under the 2005 rules but was rejected by the First-tier Tribunal as it did not find her account to be credible.

On 19 August 2015, two days before her scheduled deportation, the appellant claimed for the first time that she was a victim of trafficking both on her return journey to the UK in 2014 and within the UK. Following a medical assessment to assess whether she had been a victim of trafficking, on 20 August 2015 the Secretary of State rejected an assertion that her new claim should be treated as a fresh asylum claim and maintained the removal directions.

The 2005 Fast Track Rules under which the appellant’s case was heard were replaced with the Fast Track Rules 2014 in October 2014. However, following a series of cases challenging the lawfulness of the procedure, the 2014 rules were held by the Court of Appeal to be structurally unfair, unjust, and ultra vires, and fell to be quashed. In appealing her case to the Court of Appeal, the appellant submitted that the 2005 rules also fell to be quashed and as a result the initial decision of the FTT in her case was automatically a nullity.

It was agreed by the High Court judge who heard her judicial review challenge at first instance that the 2005 rules ought to be quashed but held that the decision in the appellant’s individual case still stood, as she could not show that the decision in her case was unfairly made. This aspect of the decision was upheld by the Court of Appeal, leading to the appellant’s Supreme Court appeal.

No suggestion of bias

In the leading judgment, with which Lord Briggs and Lord Stephen agreed, Lady Arden said of the appellant’s main argument: “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.”

In his own judgment, Lord Sales, with whom Lord Lloyd-Jones agreed, added to this point: “If the FTT in TN’s case had been biased in fact or had given an appearance of bias, the FTT decision would fall to be quashed. But there is no suggestion that the FTT was biased or that it gave any appearance of a lack of impartiality. Quite simply, these points do not support Lord Pannick’s contention that the mere fact that the FTT operated under the procedure set out in the FTR 2005 means that it acted outside its jurisdiction.” 

Lady Arden explained further: “A court order is valid and binding until it is set aside. This principle has been acted on for many years. In relation to judicial decisions, the rationale of the principle must be to bring litigation to an end and to promote certainty, especially in property and status matters. The principle and its rationale would be undermined if the consequence of the systemic failings in the FTR were that tribunal decisions were automatically null and void.” 

Addressing whether there was any judicial bias in this case, Lady Arden said: “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.” 

She continued: “She must show that [the rules] impacted upon her so as thereby to render the hearing of her appeal unfair. It follows that I would also reject a presumption that the trial was as a result unfair. The information to show that it was unfair must be in the appellant’s hands.” 

Lady Arden concluded: “What the appellant is entitled to is a fair hearing appropriate to her claim and it is no answer that the appeal would have failed even if not unfair to her. If, applying the anxious scrutiny required of any asylum claim, the court or tribunal is satisfied that the hearing of an appeal was fair to the appellant, it is its duty to say so and dismiss the application to set aside the determination of any appeal.” 

The appeal was therefore refused.