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.
(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.
(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’):-
(a) where the Tribunal considers it appropriate to do so, in response to:-
(i) an application for urgent consideration filed by the applicant (on Form T483); or
(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
(b) in response to a request by the Secretary of State for expedition, pursuant to an arrangement between her and the Chamber President.
(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.
(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.
(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.
(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.
(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.
(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:-
(a) the application to bring judicial review proceedings was refused on the papers without the benefit of an AoS and summary grounds; and
(b) the Tribunal considers that, had those grounds then been available, the application would have been recorded as being totally without merit.
(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.
Ockleton VP, Peter Lane UTJJ
[2014] UKUT 104 (IAC)
Bailii
England and Wales
Immigration
Updated: 02 November 2021; Ref: scu.523488