The Fast Track Rules which governed appeals to the First-tier Tribunal (Immigration and Asylum Chamber) against refusals by the Home Secretary of asylum applications were unfair and unjust, ultra vires the enabling Act and therefore unlawful.

The Court of Appeal so held, dismissing the appeal of the third defendant, the Lord Chancellor, and the interested party, the Secretary of State for the Home Department, against the decision of Nicol J [2015] EWHC 1689 (Admin); [2015] WLR (D) 267 on 12 June 2015, to allow the claim by the claimant, Detention Action, for judicial review by way of an order to quash the Fast Track Rules (“FTR”), set out in the Schedule to the Tribunal Procedure (First-tier Tribunal (Immigration and Asylum Chamber)) Rules 2014 (SI 2014/2604), on the ground that they were ultra vires section 22 of the Tribunals, Courts and Enforcement Act 2007. The first two defendants to the claim were the First-tier Tribunal (Immigration and Asylum Chamber) and the Upper Tribunal (Immigration and Asylum Chamber).

LORD DYSON MR said that the legality of the FTR had to be judged by reference to section 22(4) of the 2007 Act and whether the power to make the rules had been exercised with a view to securing the five objectives in subsection 4(2)(a)–(e). The rules had to secure that the proceedings were handled quickly and efficiently, but in a way which ensured that justice was done in the particular proceedings and that the system was accessible and fair. Speed and efficiency did not trump justice. Justice and fairness were paramount. Asylum appeals were often factually complex and difficult. They sometimes raised difficult issues of law too. His Lordship was unpersuaded that the safeguards relied on by the Lord Chancellor and the Secretary of State were sufficient to overcome the unfairness inherent in a system which required asylum seekers to prepare and present their appeals within seven days of the decisions they sought to challenge. His Lordship had no doubt about the independence and impartiality of the tribunal judges who dealt with the appeals. They were specialist judges doing their best to comply with the overriding objective of dealing with appeals justly. Nevertheless, in view of (i) the complex and difficult nature of the issues often raised; (ii) the problems faced by legal representatives of obtaining instructions from individuals in detention; and (iii) the considerable number of tasks they had to perform, the timetable for the conduct of those appeals was so tight that it was inevitable that a significant number of appellants would be denied a fair opportunity to present their cases under the FTR regime.

The central question was whether that unfairness was overcome by rules 12 and 14. Rule 12 gave the tribunal the power to postpone or adjourn the appeal hearing for no more than 10 days if it could not be justly decided on the date fixed ie within seven days of the decision under appeal. That had a very limited role because of the 10 day stipulation. The main focus was on rule 14 which provided that, if the tribunal was satisfied that the case could not justly be decided within the FTR timescales, it had to order the FTR to cease to apply. In that event the principal rules applied. It was not in dispute that under the principal rules appellants had a fair opportunity to present their cases properly and have them decided justly. His Lordship was satisfied that rule 14 did not provide the complete answer to the claimant’s case that at first sight it seemed to offer. First, it might be difficult for the appellant to persuade the tribunal that the appeal could not be justly determined in the limited time available. Many refusals turned on adverse findings on the appellant’s credibility. The focus of the preparation for an appeal would often, therefore, be on the search for evidence to corroborate the appellant’s account. Seven days between the refusal decision and the appeal hearing was bound to be insufficient in a significant number of cases. Secondly, the opportunity to seek a transfer out of the fast track only arose at the appeal hearing itself. The appellant was placed in a very difficult position. To explain why the time scales were unjust the appellant had to identify all the evidential gaps in his case. But if the application to transfer were refused, the appellant would then have to persuade the judge that the appeal should be allowed notwithstanding those gaps. That put the appellant in an invidious position, and was unfair and unjust. Thirdly, it was likely that judges would consider the FTR time limits to be the default position, otherwise the object of the FTR would be defeated. There was bound to be a reluctance to postpone or transfer an appeal on the day of the hearing. The tribunal would be more likely to be sympathetic to an application to postpone before the hearing date but the FTR time scales did not permit that. If the tribunal judges regularly adjourned or transferred cases out of the fact track, that would be inconsistent with the requirement in section 22(4)(e) of the 2007 Act to ensure that proceedings were handled quickly and efficiently. The time limits were so tight as to make it impossible for there to be a fair hearing of appeals in a significant number of cases. The safeguards relied on did not provide a sufficient answer. The system was therefore structurally unfair and unjust. Some relaxation of the time limits was necessary, but it was not for the court to prescribe what was required to remedy the problem. A lawful scheme had, however, properly to take into account those factors referred to whilst giving effect to the entirely proper aim of processing asylum appeals as quickly as possible consistently with fairness and justice. The FTR did not strike the right balance between (i) speed and efficiency and (ii) fairness and justice. They were too heavily weighted in favour of the former and needed to be adjusted. Precisely how that was done was a matter for the Tribunal Procedure Committee and Parliament.

BRIGGS and BEAN LJJ agreed.