Judicial review procedure in the Upper Tribunal

18.03.2014 – The Home Office revealed a 69% increase in judicial review challenges to asylum/immigration decisions in July 2013 compared with July 2012. As three-quarters of judicial review challenges relate to immigration/asylum, this is a significantly increased workload. Most relate to “temporary migration decisions”, including under new family rules. The new rules aimed to pin down Article 8 of the European Convention on Human Rights into a formula, to save courts the trouble of interpreting “family life”. But the rules are now so complex, with change piled upon change, that the Home Office caseworkers themselves do not understand them. They make decisions which ignore what the rules say and the law requires. Because so many decisions are made without understanding the law, often by relatively inexperienced Home Office case workers, recourse to the courts has compounded not diminished.

A year after the 2012 changes, the courts and the Home Office were having trouble coping with the flood of challenges. The Home Office solicitors, Treasury Solicitors, could not respond with acknowledgements of service, required within 21 days of the challenge, with summary grounds explaining if and why the Home Office was defending, because they could not get instructions from the Home Office. Cases piled up.

In R (oao Singh) v SSHD [2013] EWHC 2873 the High Court suggested, and the Home Office did not disagree:

“There should be very few cases indeed which require more than six weeks in which to lodge a summary response. In respect of those cases, there needs to be some very compelling reason demonstrated for the requirement for additional time… the Secretary of State simply cannot pray in aid a lack of resources or foresight to justify an extension of time that, even in standard cases, more than doubles the time allowed by the rules … subsequent applications must be supported by a full explanation for the delay in compliance and a firm promise to the court as to when the acknowledgement of service and summary grounds will be filed. Repeat applications with barely aspirational dates, such as have been made in the past, are to be deprecated.

“On second and subsequent applications, the court should scrutinise the reasons for the delay rigorously; and the Secretary of State should be prepared for such applications to fail unless she has produced compelling reasons specific to the case as to why further time is needed … The court must remain in control of the management of each case, and should not hesitate to impose sanctions on the Secretary of State, including costs sanctions, if good reason for delay is not made out on second or subsequent applications. Where the time and effort of parties and the court are wasted because of a failure on the Secretary of State’s part to comply with a reasonable procedural timetable, then severe sanctions can be expected.”

In Singh the Home Office told the court they expected to be able to comply with normal rules by the end of 2013. That has not happened.

In November 2013, the problem shifted to the Upper Tribunal of the Immigration and Asylum Chamber which took over most immigration judicial review challenges. When they took over, judicial review claims were being registered at the rate of some 1500 per month, and often without Home Office response to concede or defend the decision. In the first two months of 2014, some 3000 judicial review claims were lodged with the Upper Tribunal.

Rule 5 of the Upper Tribunal procedure rules gives it the power to regulate its own procedure, and it may “extend or shorten the time for complying with any rule, practice direction or direction”.

The UT has broadly followed Singh. Then, at the end of February, in The Queen (oao Kumar and Yeboah) the Upper Tribunal laid out its own expectations thus:

•· The Upper Tribunal would acquiesce in Home Office failure to file an acknowledgement of service with summary defence within 3 weeks, as the rule required, and would hope for this response within 6 weeks, without requiring the Home Office to make any formal application for extra time.

•· “[It] would be inappropriate to grant permission merely because of the absence of [defence], whether by way of ‘punishing’ that failure, or otherwise”. Nor will the Upper Tribunal necessarily grant costs against the late Respondent.

•· The Upper Tribunal will draw on its own experience, considering the Home Office response to the Applicant’s letter before claim – if there was any response.

•· Elsewhere, the Courts are disciplining parties who fail to abide by the court rules by imposing sanctions. Unphased, the Upper Tribunal ‘s attitude is that, “despite …[the judge’s] observation [in] Singh that ‘the spirit of the Jackson reforms apply to public law cases as much as to private law claims’ Those reforms do not, however, extend to the costs regime in the Upper Tribunal, whose rules are framed in terms unlike those found in the CPR … Accordingly, as a general matter, we would not regard either a failure to file an AoS within the 21 days allowed by rule 29(1) or, indeed, a failure to file within the six week period discussed above as itself constituting a reason to refuse to make an order that the reasonable costs of preparing the AoS etc. should be recoverable by the Secretary of State from the unsuccessful applicant.”.

It is disappointing that, so soon after taking over, and adopting their own rules, the Upper Tribunal is agreeing departure from its own rules. Arguably the Upper Tribunal’s reaction is beyond pragmatic and is partial, in giving the green light to one party to ignore not only the rules of the court but the principle underpinning judicial review that challenges of the decision-making of public bodies must be resolved promptly and in an even-handed way.

Meanwhile, the Home Office strategy for clearing this new backlog is anything but prompt. The Home Office is doling out pro forma consent orders pressing applicants to withdraw the application to the court on the basis that the Home Office will reconsider the claim “within three months of the sealing of the consent order”. It looks more like moving the backlog along, re-churning rather than resolving the claims.

Often these are issued instead of, not following, any acknowledgement of service with summary grounds of the Home Office position. This leaves the applicant with no idea of what the Home Office might concede or defend, with no better than a guess of when the resultant reconsideration will emerge, by which time the legal aid certificate will have been discharged following withdrawal of the claim, or personal financing may be exhausted. That the Upper Tribunal is endorsing a pragmatic approach, rather than observance of the rules, does nothing to persuade disappointed applicants that the judicial review process is there to provide a remedy rather than a runaround.