Spahiu, R (on the application of) v The Secretary of State for the Home Department, Court of Appeal - Civil Division, November 28, 2018, [2018] EWCA Civ 2604

Resolution Date:November 28, 2018
Issuing Organization:Civil Division
Actores:Spahiu, R (on the application of) v The Secretary of State for the Home Department
 
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Case No: C2/2016/3440

Neutral Citation Number: [2018] EWCA Civ 2604

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(Immigration and Asylum Chamber)

UTJ McCloskey

JR/9227/2015

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 28/11/2018

Before :

LORD JUSTICE PATTEN

LORD JUSTICE HAMBLEN

and

LORD JUSTICE COULSON

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Between :

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Mr Zane Malik (instructed by Government Legal Department) for the Appellant

Mr Hugh Southey QC & Mr Barnabas Lams (instructed by Oaks Solicitors) for the Respondent

Hearing date: Tuesday 30th October 2018

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JudgmentLord Justice Coulson :

Introduction

  1. This appeal was originally concerned with whether amendments to the statement of facts and grounds in an application for judicial review in the Upper Tribunal (``UT''), made after the grounds had been served and after the respondent has served an Acknowledgement of Service (``AoS''), require the permission of the UT. In a decision dated 18 April 2016, McCloskey J, the President, decided that Mr Spahiu was entitled to amend his grounds so as to challenge a decision made by the appellant after the proceedings had commenced, and that permission was not required for the amendments because they had been added ``prior to the first judicial adjudication''. During the appeal hearing, however, a number of other issues became apparent, including a potentially important point about whether, after refusal by the UT on paper of an application to amend the statement of facts and grounds, an applicant is entitled to seek a review of that decision.

  2. The hearing of this appeal took place against a backdrop of increasing concern about the need for appropriate procedural rigour in judicial review cases, expressed in a trio of recent authorities, namely: R (Talpada) v SSHD [2018] EWCA Civ 841, from paragraph 55 onwards; Hickey v The Secretary of State for Work and Pensions [2018] EWCA Civ 851, from paragraph 69 onwards; and Browne v The Parole Board of England & Wales [2018] EWCA Civ 2024. This case is another reminder that, even in proceedings where unnecessary formality is to be avoided, some formality (and the certainty which it brings) is required.

    The Factual Background

  3. Mr Spahiu is a citizen of Albania, born on 5 May 1983. He entered the UK illegally around 2012. He was detained in July 2015, and was served with notices concerning his illegal entry and liability to detention and removal. On 23 July 2015 he was issued with directions for his removal to Albania, set for 1 August 2015.

  4. Also on 23 July, Mr Spahiu made Article 8 and asylum claims. He commenced these judicial review proceedings in the UT on 29 July 2015, seeking to challenge the removal directions. In consequence of this challenge, the removal directions were cancelled.

  5. On 19 August 2015, the Secretary of State (``the appellant'') made an offer to Mr Spahiu that the proceedings be withdrawn by consent (because the removal directions had been cancelled) and that his asylum and human rights claims would be considered and determined in 3 months. On the same day the appellant filed an AoS with the UT, which dealt with the reasons why the appellant said that the UT should refuse permission for judicial review.

  6. The appellant's offer was rejected and instead, on 28 August 2015, Mr Spahiu filed a reply to the summary grounds of defence. On 10 September 2015 the appellant wrote to the UT inviting them to refuse permission to apply for judicial review, on the basis that the claim had become academic.

  7. On 17 September 2015, the appellant considered and determined Mr Spahiu's asylum and human rights claim. The claims were refused and were certified as ``clearly unfounded'' under Section 94 of the Nationality, Immigration and Asylum Act 2002. One of the effects of the certificate is that an appeal against the decision could be brought to the First-Tier Tribunal (``FTT'') only from abroad.

  8. On 6 October 2015, Mr Spahiu filed an application notice seeking permission to amend the grounds of judicial review. The amendments sought to challenge the decision of 17 September, contending that that decision was unlawful and that the appellant's approach to Article 8 was legally flawed.

  9. UT Judge Chalkley considered the application for permission and the application to amend together on the papers. In a decision dated 9 October 2015, he refused the application for permission to apply for judicial review, noting that the challenge to the removal directions was academic as those directions were duly cancelled by the appellant. In addition, he refused permission to amend the grounds of judicial review, noting that they represented ``an entirely different challenge'' which ``will have to be the subject of a fresh application for judicial review''.

  10. Mr Spahiu made an application to the UT seeking a review of both decisions. The status of the proposed amendments was obviously critical, because it was only the challenge made by way of the amendments that now served any purpose. A hearing took place in front of UT Judge Rintoul on 16 December 2015. A variety of arguments were raised, including a point taken by the appellant to the effect that it was not open to the UT to review the decision to refuse permission to amend, pursuant to the Tribunal Procedure (Upper Tribunal) Rules 2008 (``the Tribunal Rules''). It was said that this point was the subject of consideration in another case and eventually, the judge adjourned the applications until after the other case had been decided. He reserved this case to himself and said that he would send out case management directions in due course.

  11. Thereafter, nothing more was heard until 18 March 2016 when, without warning, the parties received a written judgment (``the March judgment'') from the President of the UT. He decided that UT Judge Chalkley had been wrong to refuse permission to amend; indeed, he suggested that permission was not even required. The relevant parts of his reasoning were as follows:

    ``5. There is a further general rule, namely that following the lodgement of a judicial review claim form, an applicant may, without permission, amend the claim at any time up to the judicial adjudication of whether permission to apply for judicial review should be granted. Amendments of this kind will be treated by the Tribunal in the same way as the original pleading. The two merge. No further fee is payable in this situation...

  12. [In the respondent's case] the initial judicial decision embodied a refusal of permission to apply for judicial review and a refusal to permit amendment of the grounds. As the analysis in [5] above makes clear, this latter aspect of the judge's order was superfluous. The Applicant has now made an application for an oral renewal hearing and seeks to rely on the proposed amended grounds. Giving effect to the general rule noted in [5] above, I consider that the applicant should be permitted to rely on the additional grounds. They effective form part of the application as lodged since they were added prior to the first judicial adjudication. Furthermore, no significant issue of delay or prejudice is identifiable. Finally, no further fee is payable.''

  13. Exactly a month later, on 18 April 2016, again without warning, the parties received a second judgment (``the April judgment'') from the President. This was in similar terms to the March judgment but contained some crucial differences. It was not explained what had prompted the changes. It is the April judgment which is reported at [2016] UKUT 230 (IAC). It has a Headnote, apparently prepared by the President, in these terms:

    ``(1) The amendment of a judicial review claim form preceding the lodgement of the Acknowledgement of Service does not require the permission of the Tribunal. Such permission is required in all other instances.''

  14. The relevant paragraphs now read:

    ``5. From the moment of initial lodgement, the tribunal exercises full control over the content of the claim form and grounds. However, it is open to an applicant to subsequently lodge a claim form containing amended grounds, serving same on the respondent, without making a formal application for permission to amend, provided that this precedes the lodgement of the respondent's Acknowledgement of Service ("AOS"). From this date, the only mechanism for amending the grounds is a formal application to amend the claim form or grounds which must be made formally in writing and paying the appropriate fee. By virtue of the Upper Tribunal (Immigration and Asylum Chamber) (Judicial Review) (England and Wales) Fees Order 2011, the prescribed fee (formerly £80.00) is £255.00, with effect from 21 March 2016: see the Civil Proceedings, Family Proceedings and Upper Tribunal Fees (Amendment) Order 2016. This is the fee prescribed for applications on notice. This is the appropriate fee because, save as outlined in [6] below, every application to amend the grounds in a claim form must be made on notice to the respondent.

    ...

  15. In the first of these two cases [Spahiu] the initial judicial decision embodied a refusal of permission to apply for judicial review and a refusal to permit amendment of the grounds. As the analysis in [5] above makes clear, this latter aspect of the Judge's order was superfluous. The Applicant has now made an application for an oral renewal hearing and seeks to rely on the proposed amended grounds. Giving effect to the general rule noted in [5] above, I consider that the Applicant should be permitted to rely on the additional grounds. They effectively formed part of the application as lodged since they were added prior to the first judicial adjudication. Furthermore, no significant issue of delay or prejudice is identifiable. Finally, no further fee is payable.''

  16. One important change in paragraph 5 is that, instead of...

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