The Relativity of Nullity: R (Majera) v Home Secretary  UKSC 46; R (TN(Vietnam)) v Home Secretary  UKSC 41
In its landmark decision in the Case of Prorogations, the United Kingdom Supreme Court suggested that the unlawfulness of Prime Minister Johnson’s advice to the Queen rendered it — and the prorogation that followed — a nullity. Together with the UKSC’s earlier decision in the unusual case of Ahmed (No. 2), the Case of Prorogations suggested that courts have no discretion when faced with unlawful administrative action. As the illegality renders the tainted decision null and void, all a court can do is confirm the inevitable.
This formed part of the academic controversy about the Case of Prorogations and, then became part of the UK government’s judicial review reform agenda. In my view (see Understanding Administrative Law in the Common Law World, chapter 5.6.2), the existence of an illegality does not necessarily entail such drastic consequences, as many courts (including the UKSC) have confirmed from time to time. And in two decisions in the latter half of last year, the UKSC returned to orthodoxy by clarifying that nullity in administrative law is very much a relative concept: R (TN (Vietnam)) v Home Secretary  UKSC 41 and R (Majera) v Home Secretary  UKSC 46 (see also Jason Varuhas).
Of the two, Majera is the more significant decision. The controversy here related to powers exercisable, on the one hand, by the Home Secretary and, on the other hand, immigration judges sitting in the UK’s tribunal system. M, who was subject to a deportation order and in immigration detention, successfully applied to an immigration judge for bail. In granting bail subject to various conditions, the judge refused to impose a condition urged upon him by the Home Secretary that M not be allowed to engage in unpaid employment. Undeterred, and without seeking judicial review of the immigration judge’s bail decision, the Home Secretary purported to remove M from immigration detention and used a statutory power to impose a restriction on M’s ability to engage in unpaid employment.
Unsurprisingly, M sought judicial review, on the basis that the Home Secretary had no authority to effect an end run around the immigration judge’s bail decision. The Home Secretary responded that the immigration judge’s bail decision was void, as it failed to require M to appear before an immigration officer, which is a requirement set out in statute. If the immigration judge’s bail decision was unlawful, was it permissible for the Home Secretary to — in essence — ignore it? Or did the Home Secretary have to bring an application to a competent court to quash the unlawful decision before taking further action?
Lord Reed, delivering the reasons of a unanimous court, held that the Home Secretary could not ignore a defective order of an immigration judge, because it is long settled law that court orders must be obeyed until set aside:
In the light of this consistent body of authority stretching back to 1846, it is apparent that the alleged invalidity of the order made by the First-tier Tribunal had no bearing on the challenge to the decision of the Secretary of State. Even assuming that the order was invalid, the Secretary of State was nevertheless obliged to comply with it, unless and until it was varied or set aside. The allegation that the order was invalid was not, therefore, a relevant defence to the application for judicial review of the Secretary of State’s decision. As there was no other basis on which the Court of Appeal reversed the Upper Tribunal, and the Secretary of State does not ask the court to dismiss the appeal on other grounds, it follows that the appeal should be allowed (at para. 56).
But Lord Reed also discussed the concept of nullity in obiter, as the Court of Appeal had found for the Home Secretary on the basis that the defective decision was a nullity and thus no barrier to the imposition of restrictions on M by another means. Lord Reed described the Court of Appeal’s statement that “when an act or regulation has been pronounced by the court to be unlawful, it is then recognised as having had no legal effect at all” as an “over-simplification” (at para. 27).
First, a decision which is allegedly unlawful cannot be said to be so before a competent court has authoritatively spoken to the alleged unlawfulness:
…if an unlawful administrative act or decision is not challenged before a court of competent jurisdiction, or if permission to bring an application for judicial review is refused, the act or decision will remain in effect. Equally, even if an unlawful act or decision is challenged before a court of competent jurisdiction, the court may decline to grant relief in the exercise of its discretion, or for a reason unrelated to the validity of the act or decision, such as a lack of standing (as in Durayappah v Fernando  2 AC 337) or an ouster clause (as in Smith v East Elloe). In that event, the act or decision will again remain in effect (at para. 29).
Second, even administrative action authoritatively held by a competent court to be unlawful is capable of having legal effect:
…it may be, in the first place, that to treat the decision as a nullity would be inconsistent with the legislation under which it was made (see, for example, R v Soneji  UKHL 49;  1 AC 340). Or the result of treating the decision as legally non-existent may be inconsistent with legal certainty or with the public interest in orderly administration: it may, indeed, result in administrative chaos, or expose innocent third parties to legal liabilities (as where they have acted in reliance on the apparent validity of the unlawful decision). In some such circumstances, the act or decision may be held to have had some legal effects in accordance with principles of the common law (as, for example, where police officers are held to have acted lawfully in arresting and detaining individuals in pursuance of byelaws which are subsequently held to be invalid: see Percy v Hall QB 924). In other circumstances, the court may be able to secure an appropriate outcome through the exercise of statutory powers (as, for example, in Salvesen v Riddell UKSC 22;  HRLR 23), or through the exercise of its discretion in granting relief (as, for example, in Fishermen and Friends of the Sea v Minister of Planning, Housing and the Environment UKPC 37) (at para. 31 and see further Understanding Administrative Law in the Common Law World, chapter 5.6.3 “Principled Grounds for Withholding a Remedy”).
Accordingly, Lord Reed stated, nullity in administrative law is a relative concept:
The language of voidness and nullity, drawn from the law of contract, can be useful for some purposes in administrative law, but it depends upon an analogy between defective contracts and defective administrative acts which is inexact. The complexity and variability of the practical consequences of unlawful administrative acts necessitate a more flexible approach than is afforded by a binary distinction between what is valid and what is void. Judges have therefore expressed reservations not only about the use of words such as “void” and “null”, but more importantly about reasoning in the field of administrative law which allows the logic of those concepts to override important values underpinning the court’s supervisory jurisdiction, such as the public interest in legal certainty, orderly administration, and respect for the rule of law (at para. 32).
Lord Reed also explained, at paras. 34-41, why the authorities commonly cited in support of absolute nullity (Lord Diplock’s speech in Hoffmann-La Roche and Lord Irvine’s speech in Boddington) do not in fact compel the conclusion that unlawful administrative acts are null and void (see also my analysis of Boddington here).
As mentioned, the discussion of nullity was obiter (see para. 43), but it is sure to be authoritative and represents a welcome reassertion of the status quo.
In TN, the UKSC addressed the separate but related problem of ‘piggybacking’ on a finding of unlawfulness. TN was an asylum seeker. The Home Secretary denied her application. TN unsuccessfully appealed to the First-Tier Tribunal under a fast-track appeal regime. The core finding of the Tribunal was that TN was not credible and thus could not demonstrate persecution on the basis of a protected characteristic. But the fast-track appeal regime was unlawful: the Court of Appeal held that the 2014 regime was systemically unfair in R (Detention Action) v First-tier Tribunal (Immigration and Asylum Chamber)  EWCA Civ 840;  1 WLR 5341. At first instance, Ouseley J found that the 2005 regime which TN had gone through was similarly deficient:  EWHC 59 (Admin);  1 WLR 2595.
But the remaining question was whether the deficiencies in the fast-track regime meant that the determination of TN’s asylum claim was also deficient. Put another way, if the regime was a nullity, was the rejection of TN’s asylum claim a nullity too? The UKSC unanimously answered in the negative.
The central problem for TN was that the Tribunal had the authority to make a determination notwithstanding the unfairness of the fast-track regime and had acted fairly in the circumstances. There was nothing unfair about the Tribunal’s determination: it was not automatically tainted by association with the defective fast-track regime (at para. 55, per Lady Arden and paras. 83-84, per Lord Sales). What TN had to establish was that the “process” by which the Tribunal arrived at its decision was unfair “in the particular circumstances of TN’s case” (at para. 84). As Singh LJ had put it in the Court of Appeal, it is “necessary to consider whether there was a causal link between the risk of unfairness that was created by the 2005 Rules and what happened in the particular case before the court” (at para. 87, per Lord Sales, quoting para. 103 of the Court of Appeal’s decision). Here, there was no such link (at paras. 90-92).
The causal link point becomes particularly important where there has been a lapse of time between a decision based on a legally defective procedure and a claim to have the decision set aside. If a decision made pursuant to a legally defective procedure is an absolute nullity, the decision can in principle be set aside far in the future (subject to compliance with procedural rules relating to delay and extensions of time). Here, TN had acted promptly (at para. 89), so there was no lapse of time in the instant case. Nonetheless, the difficulties posed by lapse of time constitute a powerful reason to treat nullity as a relative rather than absolute concept, as late applications piggybacking on judicial findings in other cases can provoke the ailments identified by Lord Reed in Majera.
Although I think the UKSC came to the right conclusion in TN, I do have two critical observations. First, I quibble with the following comment of Lady Arden’s: “TN had a right to a fair hearing, certainly, but not an additional and separate right to a hearing conducted under a set of rules that was not systemically unfair” (at para. 54). This is not quite right as a general proposition, though it may be right in this case. If an individual seeks a prohibiting order preventing a decision-maker from proceeding on the basis of a flawed procedure, the order should be granted even if an unfair decision is not inevitable (subject to the potential barrier of prematurity). In that sense, the individual has a “right” to a hearing pursuant to an unflawed procedure. Here, however, given that TN chose to use the fast-track regime (though I appreciate that the ‘choice’ here might not have been entirely voluntary), she was essentially seeking to piggyback on the invalidity of the fast-track regime. In this sense, she did not have a “right” to have the decision quashed. But I do not think it is appropriate to say that she did not have a “right” to a fair procedure.
Second, the Court of Appeal and UKSC were greatly exercised by the distinction between jurisdiction in the narrow sense and jurisdiction in the wide sense (at para. 55, per Lady Arden and paras. 82-84, per Lord Sales, quoting the Court of Appeal with approval). But I am not sure that resort to metaphysics was necessary to dispose of the appeal. The key point here was the absence of a causal link, which can be put in two ways: either (a) the defective fast-track regime was immaterial to the determination of TN’s asylum claim and she had therefore failed to discharge her onus of demonstrating that the procedural unfairness was material; or (b) the fair hearing before the Tribunal cured any procedural defects attributable to the fast-track regime. Materiality and the curative principle are perfectly plausible ways to explain the outcome in TN. There was no need for the judges to dig into the discussion of different categories of jurisdictional error from Anisminic (though one can appreciate why counsel for TN saw fit to mine Anisminic for potentially useful material).
In summary, these decisions confirm that nullity in administrative law is a relative concept, not an absolute concept. The unlawfulness of a decision does not compel the conclusion that the decision was null and void. Remedial consequences are separate from conclusions about unlawfulness.
This content has been updated on January 19, 2022 at 19:08.