UK - The Lord Chancellor (appellant) v Detention Action (respondent) and the Secretary of State for the Home Department (interested party), [2015] ECWA Civ 840

Lord Dyson began his judgment by setting out the applicable law to the dispute at hand. In order for the FTR to be vires and thus lawful, they must confirm with the requirements of Section 22(4)(a)-(e) of 2007 Act. This provision requires the procedures of a tribunal to be fair, accessible, handled quickly and efficiently, be simple and simply expressed, and confer rules on the members of the tribunal to ensure procedures are handled quickly and efficiently.

Lord Dyson noted that, as the tribunal allows for the presentation of new facts or evidence, the applicant does in principle have the opportunity to rebut the findings of the Secretary of State. However, in practice this is very difficult to do, given the tight timetable that must be adhered to. He listed eight tasks that must be fulfilled by the applicant and the lawyer when awaiting an appeal, which included checking whether the detention criteria have been fulfilled and making any representations if the applicant has been unlawfully detained, applying for bail, the giving of instructions, preparing the applicant’s statement in court, and arranging for any translation or expert witness services. This must all be done despite the lack of contact applicants generally have with their lawyers whilst in detention due to the lack of available meeting rooms, lack of privacy and the deplorably little amount of time granted for consultations. As Mr Blakely, a solicitor, pointed out, although there are seven working days between a refusal and an appeal hearing, many applicants will usually only have access to their lawyer 45 minutes before the hearing.

Lord Dyson summarised the requirements of the 2007 Act as requiring that appeals may be handled quickly and efficiently, but in a way that ensures justice is done and the system is accessible and fair. Justice and fairness are paramount and can never be trumped by speed considerations.

He noted that the burden of proof in proving that the requirements of the 2007 Act is high, as the applicant must show that the unfairness stretches beyond sporadic instances in individual cases, stemming rather from the core of the system’s procedural make-up. The key question to ask is whether the system has the capacity to react appropriately to ensure a minimum level of fairness. In addition, Lord Dyson noted that the FTR was not borne of executive power, rather from legislative power, also having originated from the proposals of a Rule Committee. The Lord Chancellor thus argued that the Court’s scrutiny should be lowered, as legislative acts hold more democratic legitimacy than executive ones, are more transparent and welcome public input. Whilst the Court accepted that it could not replace its judgment for that of the legislature in deciding what the appropriate rules should be, and that the relevant burden is a high one, this should not dilute the importance of the fact that a system which regulates an appeal of an asylum rejection should be conducted only with regard to the highest levels of fairness. Lord Dyson reminded the Court of the fact that the test for the legality was in the 2007 Act, which did not confer any exceptions to judicial review, meaning that the Court had full jurisdiction to test the legality of the FTR.

Having taken into account all of these considerations, Lord Dyson (with Lords Briggs and Bean in agreement) upheld the judgment of Lord Nicol. Given the complex and difficult nature of many asylum cases, and without questioning the competence of the judges of the Tribunal, Lord Dyson held that given the tight timetables involved, the difficulties in instructing counsel and the long list of duties to be performed, the risk of unfairness occurring was too high and too widespread to be acceptable. Furthermore this unfairness was not mitigated by the adjournment and transfer out of DFT safeguards. The main reason for this is due to a lack of a separate case management hearing, the purpose of which is to spell out to the tribunal the reasons why an adjournment or transfer would be required. Such representations are instead made during the preliminary stage of the substantive hearing, meaning that the applicant still has to prepare all substantive arguments and materials in the eventuality that the preliminary request is rejected. Given the large amount of work that already has to be done in such a small timetable, preparing an additional preliminary argument within the seven day period places an even heavier burden on the applicant. Such requests are therefore likely to be unfruitful.

As Lord Dyson interestingly noted, the operation of these safeguards can also have a negative effect on the argumentative strategy of the applicant. In the preliminary stage, the applicant must first argue that the underlying evidence is insufficient due to a lack of time or to the complexity of the case. However if this argument does not convince the tribunal and the hearing proceeds, the applicant is then forced to change their stance and argue that the evidence is in fact sufficient to ground their claim for asylum. Lord Dyson found that this eventuality places the applicant in an ‘invidious’ position that is unfair and unjust. Reneging on their original argument, through no fault of their own, casts a negative light on the credibility of the applicant from the very beginning, rendering this supposed safeguard somewhat redundant. In addition, it is likely that the Tribunal judges see the expedited timetable as the default, and are hesitant to regularly allow adjournments and transfers for fear of disrupting the general spirit of efficiency of the DFT. The safeguards of adjournment and transfer are therefore woefully insufficient to counter the potential ‘disastrous’ consequences of fast-tracking.

Lord Dyson accepted that the function of formulating an acceptable system is not a judicial one. However he noted that for a future system to be deemed fair, there must be a relaxation on the strictness of the time limits which recognises the principles of fairness and justice as far as possible.