The Queen (on the application of KA) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewis,Sir Nigel Davis |
| Judgment Date | 09 July 2021 |
| Neutral Citation | [2021] EWCA Civ 1040 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C2/2018/2479 |
[2021] EWCA Civ 1040
Sir Keith Lindblom, SENIOR PRESIDENT OF TRIBUNALS
Lord Justice Lewis
and
Sir Nigel Davis
Case No: C2/2018/2479
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Lane J, President, Mr C.M. G. Ockleton, Vice-President, and Upper Tribunal Judge Dawson
JR/10591/2017
Royal Courts of Justice
Strand, London, WC2A 2LL
Sonali Naik QC and Louise Hooper (instructed by Duncan Lewis) for the appellant.
Colin Thomann (instructed by Government Legal Department) for the respondent.
The Lord Chancellor did not appear and was not represented.
Hearing date: 24 June 2021
Approved Judgment
INTRODUCTION
This appeal concerns the process by which defendants provide acknowledgments of service in claims for judicial review brought in the Upper Tribunal. Rule 29(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the Rules) provides that a defendant who wishes to take part in proceedings for judicial review must provide the Upper Tribunal with an acknowledgment of service so that it is received within 21 days after the date on which the claim form was sent to the defendant. Such acknowledgements must indicate whether a defendant is contesting the claim, set out the grounds upon which the claim is resisted and provide any other information that may assist the Upper Tribunal: see rule 29(2) of the Rules.
The acknowledgement of service usually will greatly assist the Upper Tribunal in considering whether permission to apply for judicial review should be granted or refused. It may identify reasons why the grounds of claim are unarguable or it may identify a bar to judicial review, such as delay in bringing the claim or the availability of an alternative remedy. It may also provide information about the existence of other interested parties who should be notified of the claim, or of the need for expedition, or other information relevant to the management of the claim if permission is granted. The provision of an acknowledgement of service may therefore, benefit the Upper Tribunal, the claimant or the defendant or both, and will serve the wider interest in the efficient administration of justice.
Two issues arise in this case. The first concerns the proper interpretation of rule 29 of the Rules in circumstances where a defendant does not provide an acknowledgment of service within the 21 day period prescribed by rule 29(1) of the Rules. The appellant, KA, contends that a defendant must file an acknowledgement of service within 21 days and if he does not do so, he must either obtain an extension of time for doing so or the Upper Tribunal must make a case management decision to admit the acknowledgement of service before the Upper Tribunal can consider it. The respondent contends that the Upper Tribunal may consider an acknowledgement of service which has in fact been provided before the decision on whether to grant permission is taken, even if it is provided after the 21 day time limit set by rule 29 of the Rules.
The second issue concerns arrangements put in place in the case of R (Kumar and another) v Secretary of State for the Home Department [2014] UKUT 00104 (IAC) to enable the respondent to provide acknowledgements of service within 42 days rather than 21 days. They became known as the Kumar arrangements. The appellant seeks a declaration that the Kumar arrangements were unlawful as, in effect, they involved amendments to rule 29 of the Rules and the Upper Tribunal had no power to make such amendments. The respondent contends that the Kumar arrangements were lawful. The respondent further contends that both issues are academic and therefore the Court ought not to deal with either issue.
THE LEGAL FRAMEWORK
The Statutory Framework
The Upper Tribunal was created by section 3 of the Tribunals, Courts and Enforcement Act 2007 (“the Act”). Sections 15 and 16 the Act provide for applications to be made to the Upper Tribunal in certain cases for the remedies available in claims for judicial reviews. A Consolidated Direction was made by the Lord Chief Justice on 24 October 2013 that certain classes of claim for judicial review were to be heard by the Upper Tribunal. They included, subject to certain exceptions, challenges to decisions made under the Immigration Acts which were designated as immigration matters.
The rules governing the procedure for dealing with judicial review claims in the Upper Tribunal are contained in the Rules made under section 22 of the Act. They are made by the Tribunal Procedure Committee in accordance with the process set out in Schedule 5 to the Act. Practice Directions may be made by the Senior President of Tribunals (with the approval of the Lord Chancellor) or Chamber Presidents (with the approval of the Senior President of Tribunals) pursuant to section 23 of the Act. There is also provision for Chamber Presidents to issue guidance on changes in law and practice: see paragraph 7 of Schedule 4 to the Act.
The Rules
Rule 2 of the Rules provides that the Upper Tribunal must give effect to the overriding objective of dealing with cases fairly and justly when exercising its powers under the Rules or interpreting any rule or practice direction. That rule also provides that parties must help the Upper Tribunal to further the overriding objective. Rule 7, so far as material, provides that:
“7. Failure to comply with rules etc.
(1) An irregularity resulting from a failure to comply with any requirement in these Rules, a practice direction or a direction, does not itself render void the proceedings or any step taken in the proceedings.
(2) If a party has failed to comply with a requirement in these Rules, a practice direction or a direction, the Upper Tribunal may take such action as it considers just, which may include –
(a)
(b) waiving the requirement…..”.
Rule 28 deals with applications for permission to bring judicial review proceedings. Rule 28A deals with immigration judicial reviews (i.e. those designated as immigration matters by the Consolidated Direction). Rule 29 deals with acknowledgments of service and provides as follows:
“29.— Acknowledgment of service
(1) A person who is sent or provided with a copy of an application for permission under rule 28(8) (application for permission to bring judicial review proceedings) or rule 28A(2)(a) (special provisions for immigration judicial review proceedings) and wishes to take part in the proceedings must provide to the Upper Tribunal an acknowledgment of service so that it is received no later than 21 days after the date on which the Upper Tribunal sent, or in immigration judicial review proceedings the applicant provided, a copy of the application to that person.
(2) An acknowledgment of service under paragraph (1) must be in writing and state—
(a) whether the person intends to support or oppose the application for permission;
(b) their grounds for any support or opposition under sub-paragraph (a), or any other submission or information which they consider may assist the Upper Tribunal; and
(c) the name and address of any other person not named in the application as a respondent or interested party whom the person providing the acknowledgment considers to be an interested party.
(2A) In immigration judicial review proceedings, a person who provides an acknowledgement of service under paragraph (1) must also provide a copy to—
(a) the applicant; and
(b) any other person named in the application under rule 28(4)(a) or acknowledgement of service under paragraph (2)(c)
no later than the time specified in paragraph (1).
(3) A person who is provided with a copy of an application for permission under rule 28( 8) or 28A(2)(a) but does not provide an acknowledgment of service to the Upper Tribunal may not take part in the application for permission unless allowed to do so by the Upper Tribunal, but may take part in the subsequent proceedings if the application is successful.”
Rule 30 provides for the Upper Tribunal to notify the parties and certain others of the decision on permission. If permission is refused without a hearing, the claimant may apply for the refusal to be reconsidered at an oral hearing. Rule 31 provides for the provision of detailed grounds and evidence if permission to apply for judicial review is granted.
The Kumar Arrangements
In 2013 and 2014, the Secretary of State for the Home Department was routinely unable to provide acknowledgements of service within 21 days in judicial reviews involving immigration cases — partly, it seems, due to an increased volume of such claims. At the same time, the Upper Tribunal itself faced increasing volumes of claims. Consequently, applications for permission to apply for judicial review were unlikely to be placed before a judge for consideration until 6 weeks after the claim for judicial review was filed.
In January 2014, the Upper Tribunal outlined arrangements for dealing with the provision of acknowledgements of service. In essence, the Upper Tribunal indicated that applications for permission would not be considered for six weeks after being filed. An acknowledgement of service provided within that six week period would be considered by the Upper Tribunal judge when deciding whether to grant permission without the defendant having to apply for an extension of time for providing the acknowledgment of service. Arrangements were also made whereby the Upper Tribunal would consider certain applications within six weeks, if it...
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