Unfair procedure. Fair outcome?

Does an unfair procedure necessarily yield an unfair outcome? This was a question that was recently considered by the Supreme Court in London.

Background

The appellant, TN, is a Vietnamese national. In January 2004, she claimed asylum in the UK on the basis of religious persecution. TN was granted temporary admission but absconded. Her asylum claim was refused in April 2004. In 2011, TN came back on the radar when she made new submissions to the Home Secretary. She was detained and removed to Vietnam in March 2012.

In 2014, the First-Tier Tribunal dismissed an appeal from the determination of the Home Secretary that TN was not entitled to asylum. That appeal was heard under the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2005 (2005 rules), which were then replaced by the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (2014 rules).

In an unrelated case, the High Court quashed the 2014 rules because they were structurally unfair and unjust and created an unacceptable risk of unfairness. This was upheld on appeal in June 2015.

On foot of this, TN challenged the determination of her appeal, contending that the 2005 rules also fell to be quashed. She further contended that the decision of the First-Tier Tribunal in her case should automatically be quashed on that basis.

The High Court, agreeing that the 2005 rules should be quashed, did not consider that the decision of the First-Tier Tribunal had been shown to be unfair in TN’s case. This was upheld by the Court of Appeal.

Judgment

In the Supreme Court, Lady Arden considered that the structural unfairness of the 2005 rules did not mean that the hearing was unfair in TN’s 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.

Conclusion

TN did not present as a ‘reliable historian’. Her appeal was dismissed.

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