Upper Tribunal (Immigration and asylum chamber), 2019-01-11, [2019] UKUT 64 (IAC) (R (on the application of JS and Others) v Secretary of State for the Home Department (litigation friend – child))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Upper Tribunal Judge Rintoul, Upper Tribunal Judge Rimington |
| Status | Reported |
| Date | 11 January 2019 |
| Published date | 19 February 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | litigation friend – child |
| Hearing Date | 16 October 2018 |
| Appeal Number | [2019] UKUT 64 (IAC) |
IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
R (on the application of JS and Others) v Secretary of State for the Home Department (litigation friend – child) [2019] UKUT 00064 (IAC)
Heard on 16th October 2018
At Field House
BETWEEN
THE QUEEN (on the applications of
JS
SJ
SS
NL)
Applicants
- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
- and -
THE LORD CHANCELLOR
Interested party
Before
THE HON MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE RINTOUL
UPPER TRIBUNAL JUDGE RIMINGTON
Appearances:
Ms J Fisher, instructed by Duncan Lewis, for the applicant NL (the other applicants not being present or represented)
Ms H Masood, instructed by the Government Legal Department, for the respondent
Mr D Blundell, instructed by the Government Legal Department, for the interested party
___________
JUDGMENT
___________
(1) Although all cases are fact-specific, the following general guidance represents the approach the Upper Tribunal is likely to adopt in deciding whether a child applicant in immigration judicial review proceedings requires a litigation friend to conduct proceedings on the child’s behalf:
(a) As a general matter, applicants aged 16 or 17 years, without any attendant vulnerability or special educational need or other characteristic denoting difficulty, will be presumed to have capacity and so be able to conduct proceedings in their own right. They will generally not require a litigation friend. This is the position even if they are not legally represented.
(b) The appointment of litigation friends for applicants between the ages of 12 years and 15 years inclusive (i.e. 12 and over but younger than 16) needs to be considered on a case-by-case basis and the circumstances which should be considered, but which are not exhaustive, are:
(i) whether the applicant is legally represented;
(ii) whether there is an assisting parent;
(iii) whether there is a local authority involved; and
(iv) whether the applicant has any type of vulnerability.
(c) If an applicant in this age group is legally represented, the Tribunal will expect the representative specifically to address in writing the issue of whether, in the representative’s view, a litigation friend is necessary, having regard to capacity and the position of any parent.
(d) Applicants under the age of 12 will normally require a litigation friend.
(2) The above approach is one that, as a general matter, should also be followed in appeal proceedings, whether in the First-tier Tribunal or the Upper Tribunal.
(3) In deciding who is to be a litigation friend in a particular case, the guiding principles, derived from the Civil Procedure Rules, are:
(a) can he or she fairly and competently conduct proceedings on behalf of the child?
(b) does he or she have an interest adverse to that of the child?
(4) For practical purposes, only one person should normally be nominated as a litigation friend. A parent of a child will often be the obvious choice but not the only option.
A. INTRODUCTION
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The applicants are all minors who have issued applications for judicial review. JS and SJ issued proceedings on their own behalf. SS and NL issued proceedings by way of a legal representative. Their applications were linked and heard by a panel in order to determine the principles on the procedural approach of the Immigration and Asylum Chamber of the Upper Tribunal in immigration judicial review proceedings involving an applicant who is a child (that is to say, a person under the age of 18 years). Although confined to the position of children in such proceedings, our decision touches, where necessary, upon wider issues of capacity. As we shall also indicate, our approach will also have relevance to statutory appeals, in the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal.
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We shall, in particular, have a good deal to say about the nature and role of litigation friends. The absence of any provisions in the Tribunal Procedure (Upper Tribunal) Rules 2008 (‘the Upper Tribunal Rules’) and practice directions regarding the use of litigation friends in judicial review proceedings mean that there is, at present, a degree of uncertainty when an application for immigration judicial review is made in respect of a child without a litigation friend.
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Each child in the linked cases presented with a different profile. The respondent invited guidance on how to approach the conduct of litigation when a child needed a litigation friend. The Lord Chancellor applied and was joined as an interested party. Initially, in relation to the appointment of a litigation friend, the following questions were raised:
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Does the Immigration and Asylum Chamber of the Upper Tribunal have power to appoint a litigation friend for children in judicial review proceedings in the Upper Tribunal?
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If so, in what circumstances must a litigation friend be appointed to assist a child in such proceedings?
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To what extent, if any, can the Tribunal seek guidance from the approach set out in the Civil Procedure Rules 2018 (‘CPR’) when deciding these questions?
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What are the duties of a litigation friend in the proceedings?
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A synopsis of each case, the individual claim and the varying responses by the respondent illustrates the need for guidance.
B. THE APPLICANTS
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JR/10359/2017. JS is a citizen of India born in the UK on 2nd August 2015 (now aged 3 years). Her application for leave to remain in the UK was refused by the respondent on 20th September 2017 and following an administrative review that decision was maintained. Without legal representation, she filed judicial review proceedings on 14th December 2017 on the basis that she was a stateless person under paragraph 403 of the immigration rules. In this instance the respondent filed an Acknowledgment of Service indicating that reconsideration was to be provided within three months and thus the application for permission was academic. The respondent said this in the summary grounds of defence served with the Acknowledgment of Service:
“normally such a JR application is apt for strike out or the UT may be minded to appoint the father of the baby (Mr V A J v SSHD [2005] EWCA Civ 629) as the litigant friend for his daughter since he has signed the application form. Since the SSHD has decided to reconsider this case and in view of the approaching Acknowledgment of Service deadline where an appointment of a litigation friend and a consent order may not be processed in time, the SSHD files this short form academic AOS, by way of practically dealing with this JR claim.”
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On 7th February JS’s father indicated that he wished to be considered as JS’s litigation friend. The matter was listed for directions on 15th February 2018 but a letter dated 9 October 2018 stated that JS’s mother would be her litigation friend.
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JR/372/2018 SJ is a citizen of the Philippines born on 12th November 2012 (now aged 5 years). His application for leave to remain as a stateless person was refused on 8th November 2017. SJ’s judicial review claim form was filed in his own name but was signed by his mother. There is now an Acknowledgment of Service dated 4 October 2018, but the respondent had, in fact, written to the Tribunal on 6th February 2018 stating that:
“the purported Applicant in this claim is a minor (aged 5 years old). Accordingly, under CPR 21.2(2), he must have a litigation friend to conduct proceedings on his behalf unless the court makes an order under CPR 21.2. (3). Any step taken before a child has a litigation friend has no effect unless the court orders otherwise (CPR 21.3(4)).
No litigation friend has been identified in the claim form. As far as we are aware no application has been made for an order under CPR 21.2(3).
In the circumstances, it cannot be said that these proceedings have been properly brought. The respondent submits that she does not, at the present time, intend to submit an Acknowledgment of Service to this claim unless and until a litigation friend is appointed.
The respondent invites the Tribunal to make such directions (for example, to require an application to appoint a litigation friend to be made within 14 days or appoint one of its own motion) as it sees fit.
It is noted that the Applicant does not have legal representation in this matter. A copy of this letter has therefore been sent to the address specified in Section 1 of the claim form’.
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The matter was set down for directions on 20th February 2018.
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In a letter to the Tribunal received on 9th March 2018, SJ’s mother stated that she...
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