24th September 2021
Robin Tam QC appeared with Natasha Barnes on behalf of the Home Secretary in R (TN (Vietnam)) v Home Secretary  UKSC 41, successfully resisting an appeal in which the Supreme Court upheld a Court of Appeal decision that an asylum appeal determination is not automatically a nullity even if the applicable fast-track procedure was systemically flawed. An unsuccessful asylum appellant must show unfairness in the circumstances of their own case in order to have the determination set aside. The claimant could not show unfairness, so the Supreme Court confirmed that her claim concerning the appeal determination failed.
When dismissing the claimant’s appeal, the Supreme Court approved the Court of Appeal’s decision and reasons ( EWCA Civ 2838) as to why the asylum appeal determination is not automatically a nullity in these circumstances, and also the Court of Appeal’s guidance as to the approach that a judicial review court should take to assessing whether there was unfairness in the individual case.
At earlier stages in this complex litigation, the High Court had also decided ( EWHC 59 (Admin)) that the applicable fast-track rules (dating back to 2005) were systemically flawed in the same way as similar rules made in 2014, and that the claimant had made a “fresh claim” that still had to be dealt with by the Home Secretary. At that stage, another claimant was found to have been unfairly treated within the fast-track process. Consequently, that claimant’s appeal determination was thereafter quashed, and he took no part in the Supreme Court appeal.
In addition, in a separate decision the High Court had also ruled ( EWHC 3546 (Admin)) that if there had been unfairness in the determination of the individual case, any challenge was to be brought by judicial review because the First-tier Tribunal had no power to set aside old determinations made under the 2005 rules.