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New Judgment: R (on the application of TN (Vietnam)) v Secretary of State for the Home Department and another [2021] UKSC 41

Written by
Matrix Legal Support Service, UK Supreme Court Blog
Date of Publication:
22 September 2021

The Supreme Court unanimously dismissed this appeal concerning the effect of structural unfairness in the Fast Track Procedure 2005 on individual appeal determinations.

The appellant, a Vietnamese national, claimed asylum in January 2004 based on religious persecution in Vietnam for being a Catholic. She was granted temporary admission but absconded. Her asylum claim was refused for non-compliance in April 2004. The appellant made fresh submissions to the Secretary of State in 2011, claiming that she had been working in a nail bar. The appellant was detained at the nail bar in February 2012 and removed to Vietnam in March 2012. The appellant re-entered the UK clandestinely in May 2014, and was arrested again on suspicion of illegal working while present at a different nail bar in July 2014. They made a fresh asylum claim on the basis of events that she claimed had occurred after she was removed to Vietnam. She claimed that she could not return to Vietnam due to religious persecution and that her mother and a local priest had caused a financial crisis in the community. On 2 August 2014 the Secretary of State decided that the asylum claim was suitable for determination in the Detained Fast Track (DFT) process, and they were detained. In her asylum interview on 12 August 2014, she alleged that she had been detained and tortured by the Vietnamese authorities on her return in 2012 and that she had been sexually abused on her return journey to the UK in 2014.

The Secretary of State refused the appellant's asylum claim. The decision was appealed, and the First Tier Tribunal (FTT) dismissed her appeal finding that her account was not credible. A new claim was mad by the Appellant on new grounds, which the Secretary of State refused to treat as a fresh asylum claim and maintained the removal directions. Ouseley J held that this new claim was a valid fresh claim, and it remains outstanding; but he rejected her claim that the FTT's previous determination was automatically a nullity.

On appeal, the Court of Appeal dismissed her appeal in relation to this latter point. On the question of automatic nullity, it was held that the FTT in determining an appeal in a way which was procedurally unfair would be acting without jurisdiction, and so unfairness had to be shown in the individual case.

Held – appeal dismissed.

Lady Arden rejected the appellant's principal submission that the FTT's determination was automatically a nullity and without effect. The fact that the system was structurally unfair did not mean that it operated unfairly in every case. Agreeing with Lord Sales, she accepted Singh LJ's jurisdictional reason. Lady Arden rejected the submission that the determination was "inextricably linked" to the systemic unfairness.

Lady Arden affirmed the principle that a court order is valid until set aside and distinguished the judicial bias cases which can lead to automatic nullity. The appellant failed to show that the rules impacted adversely on her in the conduct of the hearing. In determining unfairness, tribunals must apply anxious scrutiny and may apply the principle of overall fairness. The appellant's new claim has still to be determined. Lady Arden agreed with the conclusions reached below on absence of unfairness in the appellant's case and found no error of law.

Lord Sales agreed with the Court of Appeal's judgment and amplified the "conceptual distinction" between ultra vires and procedural unfairness in an individual case. He agreed with Lady Arden on the judicial bias cases and agreed with the guidance given by Singh LJ in the Court of Appeal for determining whether an appeal determination was unfair. He rejected any presumption of unfairness where a decision has been made pursuant to the FTR 2005 and came to the same conclusion as Lady Arden that there is no basis for setting aside the conclusion below that the determination in the appellant's case was fair.