R (Kumar and another) v SSHD
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Peter Lane |
| Judgment Date | 20 January 2014 |
| Neutral Citation | [2014] UKUT 104 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 20 January 2014 |
The Queen on the Application of
[2014] UKUT 104 (IAC)
Mr C M G Ockelton, Vice President Of The Immigration And Asylum Chamber Of The Upper Tribunal
Upper Tribunal Judge Peter Lane
Upper Tribunal
(Immigration and Asylum Chamber)
R(on the application of Kumar and Another) v Secretary of State for the Home Department (acknowledgement of service; Tribunal arrangements) IJR
In the light of the continuing inability of the Secretary of State to file acknowledgements of service in immigration judicial review proceedings within the time limit contained in the Tribunal Procedure (Upper Tribunal) Rules 2008 and in the light of the general guidance given by the High Court in R (on the application of Singh and Others) v Secretary of State for the Home Department [2013] EWHC 2873 (Admin) , the following general arrangements (which will be kept under review) apply in the Immigration and Asylum Chamber of the Upper Tribunal.
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(1) The Tribunal will, in immigration judicial reviews, regard an Acknowledgement of Service filed within six weeks of service of the claim on the Secretary of State as falling routinely for consideration and will not undertake an initial consideration of the judicial review application before the end of that six week period.
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(2) The Tribunal will undertake a consideration of that application earlier than the end of the period mentioned in paragraph (1) above (“the six week period”):–
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(a) where the Tribunal considers it appropriate to do so, in response to:–
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(i) an application for urgent consideration filed by the applicant (on Form T483); or
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(ii) a notice in writing from the applicant, copied to the Secretary of State, which states the need for urgency and the proposed timescale for considering the application; and
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(b) in response to a request by the Secretary of State for expedition, pursuant to an arrangement between her and the Chamber President.
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(3) Where a stay on removal or other form of interim injunctive relief is sought, an application for urgent consideration on Form T483 must be made, complying with Practice Directions 11 and 12 and accompanied by any requisite fee.
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(4) In view of paragraphs (1) and (2) above, the Tribunal will not consider it necessary for the Secretary of State to apply for an extension of the 21 day time limit in rule 29(1), unless she considers she is unable to file an AoS and summary grounds before the expiry of the six week period. In such a case, the Secretary of State must make an application for extension of time, on 72 hours notice to the applicant, which satisfies the requirements set out by Hickinbottom J at [25] of Singh ; that is to say, there must be compelling reasons specific to the case as to why further time is needed, together with a firm promise as to when the AoS and summary grounds will be filed. The application should include the judicial review applicant's response (or lack of response) to the application for extension of time.
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(5) The Secretary of State should not make an application for an extension of time for filing an AoS, which she knows cannot satisfy the ‘ Singh’ requirements.
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(6) In every case, not later than the end of the six week period, the Secretary of State will be expected to file with the Tribunal (and serve on the applicant) either a copy of the written response of the Secretary of State to the applicant's pre-action protocol letter or written confirmation that no such written response was sent to the applicant. This requirement does not absolve the Secretary of State from filing an AoS and summary grounds, where she wishes to take part in the proceedings.
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(7) Except as provided in paragraph (2) above or where time is extended in response to an application by the Secretary of State for extension of time, the parties can expect the Tribunal to consider the judicial review application at any time after the expiry of the six week period. This will be so, whether or not an AoS and summary grounds have been filed, unless the judge considering the application is of the view that there are particular reasons (such as potentially significant factual matters) why the Secretary of State should be specifically directed to file an AoS and summary grounds.
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(8) As a general matter, the Secretary of State will be vulnerable to an application for costs in respect of an oral hearing held pursuant to rule 30(4) made by an unsuccessful judicial review applicant, where:–
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(a) the application to bring judicial review proceedings was refused on the papers without the benefit of an AoS and summary grounds; and
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(b) the Tribunal considers that, had those grounds then been available, the application would have been recorded as being totally without merit.
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(9) Where permission was granted without the benefit of an AoS and summary grounds, the Secretary of State will ordinarily be liable to pay the applicant's costs, up to the point when the Secretary of State's detailed grounds are filed, regardless of the ultimate fate of the judicial review application.
For the Applicants: Mr D O'Callaghan, Counsel, instructed by Duncan Lewis Solicitors
For the Respondent: Ms C Patry, Counsel, instructed by the Treasury Solicitor
On 1 November 2013, the Immigration and Asylum Chamber of the Upper Tribunal assumed jurisdiction in respect of a wide range of applications for judicial review of immigration and related decisions taken (for the most part) by the Secretary of State for the Home Department 1. Pursuant to the Tribunals, Courts and Enforcement Act 2007 and various enactments and instruments made under it, the Chamber has “original” judicial review jurisdiction in those classes of case falling within the direction made by the Lord Chief Justice on 21 August 2013. In addition, any application for judicial review falling within those classes must, if filed with the High Court, be transferred by that Court to the Upper Tribunal (section 31A(2) of the Senior Courts Act 1981). The effect of the direction was such that, on 1 November 2013, a large number of applications, originally made to the High Court, were transferred to this Chamber.
On 17 September 2013, Hickinbottom J gave judgment in R (on the application of Singh and Others) v Secretary of State for the Home Department [2013] EWHC 2873 (Admin) (“ Singh”). In that judgment, general guidance was given as to the approach the Administrative Court could be expected to adopt where, in an immigration judicial review, the respondent Secretary of State has not filed an acknowledgment of service (AoS), accompanied by summary grounds of defence (“summary grounds”), within 21 days of being served with a claim for judicial review. CPR 54.8(1) provides that a defendant or other person wishing to take part in a judicial review “must file
an acknowledgment of service …” and CPR 54.8(2)(a) requires this to be done “not more than 21 days after service of the claim form”.The need for guidance in Singh arose because, by the summer of 2013, it had become apparent that the Secretary of State was, in practice, unable in very many instances to serve an AoS within the required time limit, even though she wished to oppose the judicial review application. This, in turn, had led judges and deputy judges of the High Court to respond in various ways, including granting the respondent's applications for extensions of time to serve the AoS, determining the judicial review application without the AoS and adjourning such applications into open court.
The problems described in Singh have, since 1 November 2013, been routinely faced by this Chamber. Both of the cases before us are ones where the respondent was unable to serve an AoS, either within 21 days of service of the judicial review application on her or for a considerable period thereafter. The cases were considered to be suitable for hearing argument on the general approach to be adopted where an AoS is not filed within the 21 day period, which is also the period specified in rule 29(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the Upper Tribunal Rules”) for filing an AoS (see paragraph 6 below).
On 20 January 2014, we heard submissions on these matters from Mr O'Callaghan, on behalf of the applicants, and Ms Patry, on behalf of the respondent (hereafter the Secretary of State). We wish to record our gratitude to Counsel and to those respectively instructing them for assisting the Tribunal, both in written and oral submissions. In the event, nothing specific requires to be said in this decision about the cases of Mr Kumar or Mr Yeboah, save that each application will hereafter be considered on the papers by an Upper Tribunal judge.
For our purposes, the following provisions of the Upper Tribunal Rules are relevant:–
“1. Citation, commencement, application and interpretation
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“applicant” means a person who applies for permission to bring, or does bring, judicial review proceedings before the Upper Tribunal and, in judicial review proceedings transferred to the Upper Tribunal from a court, includes a person who was a claimant or petitioner in the proceedings immediately before they were transferred …
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“immigration judicial review proceedings” means judicial review proceedings which are designated as an immigration matter:–
(a) in a direction made in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005 specifying a class of case for the purposes of section 18(6) of the Tribunals, Courts and Enforcement Act 2007; or
(b) in an order of the High Court in England and Wales made under section 31A(3) of the Senior Courts Act 1981, transferring to the Upper Tribunal an application of a kind described...
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