R (on the Application of SN) v Secretary of State for the Home Department (Striking Out - Principles) (IJR)
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice McCloskey |
| Judgment Date | 23 April 2015 |
| Neutral Citation | [2015] UKUT 227 (IAC) |
| Date | 23 April 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2015] UKUT 227 (IAC)
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review Decision Notice
On the application of the Applicant for permission to apply for judicial review
R (on the application of SN) v Secretary of State for the Home Department (striking out — principles) IJR
Having heard the parties' respective counsel, instructed by CK Law Solicitors and the Government Legal Department respectively, at hearings at Field House, London on 06 January and 16 March 2015
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(i) Rule 7(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 empowers the Upper Tribunal to take such action as it considers just, which may include striking out a party's case under rule 8, where there has been a failure to comply with a requirement of the rules, a practice direction or a tribunal direction.
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(ii) Under rule 8 proceedings are automatically struck out in the event of failure to comply with an order or direction which specifies that non-compliance will attract this sanction, viz an “unless” order. In other cases the power to strike out is discretionary.
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(iii) In considering whether to exercise its discretionary strike out power under rule 8, the main factors which the Upper Tribunal will weigh are the interests of the administration of justice; whether there has been a prompt application for relief; whether the failure was intentional; whether there is a good explanation for the failure; the number and importance of multiple failures; whether the failure was caused by the party or his legal representative; whether the trial date will be jeopardised by the grant of relief; the effect on every party of the relevant failure; and the effect on every party of granting relief. Further, the interests of the administration of justice will be weighed and applied.
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(iv) In addition, the Tribunal will apply the following principles: public authorities and private litigants are to be treated alike; excessive work burdens will rarely excuse a defaulting solicitor; and the mere factor of a party being unrepresented does not constitute good reason. In asylum and humanitarian protection claims, particular care must be taken to ensure that appeals are not frustrated by a failure on the part of a party's legal representative to comply with time limits.
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(v) In considering the exercise of its discretionary strike out power under rule 8, the Tribunal will be mindful of the draconian nature of such orders and will take into account the availability of any other appropriate and adequate sanction such as a wasted costs order under rule 10(3). Repeated defaults will almost invariably be considered more serious than a single act of non-compliance. In every case the Tribunal will consider the question of whether its process is being misused.
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(vi) In an application under rule 8(5) to reinstate a struck out case, the main factors to be considered are the reason for the failure which gave rise to the strike out order, whether there has been any undue delay in applying for reinstatement and whether reinstatement would prejudice the other party.
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(vii) The values of efficiency and expedition will be promoted and due observance of the overriding objective will be enhanced by adherence to the principles and standards of pleading rehearsed in [28] – [32].
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(viii) In judicial review cases, applications to amend so as to enable a new or later decision to be challenged must be made proactively and timeously. Such applications will be determined on their merits and giving effect to the overriding objective.
Mr Justice McCloskey,
This judgment addresses the following issues:
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(i) The exercise of the Upper Tribunal's power to strike out a case under rule 8(3) of the Tribunals Procedure (Upper Tribunals) Rules 2008.: [1] - [24]
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(ii) The exercise of the Upper Tribunal's power under rule 8(5) to reinstate a case which has been struck out: [25] - [27]
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(iii) Pleadings in judicial review proceedings: [28] - [32]
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(iv) The amendment of judicial review claims: [33] – [36]
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(v) The exercise of the Upper Tribunal's power to make a wasted costs order: [37] – [38]
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI2008/269) the Upper Tribunal makes an Anonymity Order. Unless the Upper Tribunal or competent court orders otherwise, no report of any proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This prohibition applies to, amongst others, all parties.
The Applicant is a national of Sri Lanka, aged 32 years.
This is a renewed application for permission to apply for judicial review. While the history is moderately protracted, I shall endeavour to reduce it to the following salient summary:
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(a) The Applicant was lawfully present in the United Kingdom as a Tier 4 Student from 11 April 2010. Her leave expired on 06 September 2011.
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(b) She was an unlawful “overstayer” thereafter.
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(c) Subsequently, the Applicant made a claim for asylum which was the subject of an interview on 25 November 2013. Her case was assigned to the “Detained Fast Track” (DFT) process.
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(d) On 05 December 2013 her claim for asylum was refused.
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(e) On 17 December 2013, her appeal against this decision was dismissed by the First-tier Tribunal (the “ FtT”).
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(f) On 23 December 2013, her application for permission to appeal to the Upper Tribunal was refused.
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(g) On 24 January 2014, the Applicant's solicitors submitted further representations on her behalf to the Respondent.
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(h) On 28 January 2014, the Applicant initiated her first judicial review proceedings, challenging the Respondent's alleged failure to consider her further representations and to defer removal.
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(i) By successive orders dated 29 and 31 January 2014 respectively, the first on paper and the second following an oral renewal hearing, Upper Tribunal Judges Kekic and Gleeson refused to grant permission.
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(j) On 01 February 2014, the Respondent decided that the Applicant's further representations did not constitute a fresh asylum, humanitarian protection or human rights claim, applying paragraph 353 of the Immigration Rules.
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(k) By order of the Administrative Court of the same date, the Applicant's imminent removal from the United Kingdom was stayed for a period of 72 hours.
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(l) This was followed by further representations on behalf of the Applicant and the maintenance of the Respondent's decision that the representations did not constitute a fresh claim.
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(m) On 22 May 2014, the Applicant's application for permission to apply for judicial review was refused, by order of Upper Tribunal Judge Warr.
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(n) This was followed by a request for an oral hearing, dated 29 May 2014.
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(o) The subsequent issue of new removal directions by the Respondent stimulated still further representations, dated 20 June 2014, from the Applicant's solicitors.
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(p) By a further decision dated 25 June 2014, the Respondent determined that these did not constitute a fresh claim.
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(q) Undeterred, the Applicant's solicitors made further written representations, dated 01 July 2014 based on a witness statement of the Director of the organisation “Act Now” purporting to support the Applicant's claim that she had been the victim of sexual violence in Sri Lanka due to her association with LTTE, together with a public statement of the United Kingdom Government's Foreign Secretary bearing on this subject generally.
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(r) On 03 July 2014, the Applicant submitted still further representations to the Respondent.
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(s) The application for an order staying the removal of the Applicant from the United Kingdom was refused by order of Upper Tribunal Judge King, dated 04 July 2014.
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(t) The Applicant was removed from the United Kingdom to Sri Lanka on the same date.
Accordingly, the Applicant was removed from the United Kingdom to her country of origin, Sri Lanka, some nine months ago. At the time of her removal there remained extant her application, dated 29 May 2014, to renew orally her application for permission to apply for judicial review which had been refused by order dated 22 May 2014. The Applicant's removal to her country of origin on 04 July 2014 signalled the beginning of a period which was marked by a series of substantial defaults on the part of her legal representatives.
Next, the Applicant's oral renewal hearing was listed before two senior Upper Tribunal Judges on 20 August 2014. This was a specially convened panel. Without prior notice to either the Tribunal or the Respondent, the Applicant's representatives intimated their desire to amend the claim so as to challenge the legality of their client's removal from the United Kingdom to Sri Lanka on 04 July 2014. The amended grounds of challenge bear the date of this hearing, 20 August 2014. The effect of this development was to cause this hearing to be aborted. The order made by the Tribunal on this date recited:
“ Permission granted to Applicant to amend the claim form to also include a challenge to the third decision letter dated 25 June 2014 and a challenge to the lawfulness of the Applicant's removal to Sri Lanka. The following directions shall apply:
(i) The Applicant shall file and serve fully pleaded amended grounds of claim setting out in detail the nature of the claim, evidence relied upon, relevant legal principles and the relief sought no later than 21 days from the date of the posting of this order to her. The pleadings shall be accompanied by a bundle containing all documentary evidence the Applicant relies upon in support of the claim.
(ii) The Respondent shall have leave to file and serve an amended Defence no later than 21 days after receipt of the Applicant's amended pleading and bundle of documents.
(iii) The permission application...
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