Court of Appeal holds that a ‘rolling review’ is acceptable

R (Spahiu) v Secretary of State for the Home Department [2018] EWCA Civ 2604 (28 November 2018)

Adding to the vast expanse of technical judicial review litigation, this judgment concerns a protracted dispute between a failed asylum-seeker and the Home Office regarding amendments to his judicial review claim. The Court of Appeal held that an applicant for judicial review in the Upper Tribunal could amend his statement of facts and grounds, without permission, up to the date the statement was served on the respondent Home Office. Although unnecessary formality is to be avoided in proceedings, some formality is necessary to ensure certainty. Therefore, after service permission is needed for amendment. While “there is no hard and fast rule” against a “rolling” or “evolving” review, giving claimants an automatic right to amend their cases is problematic. An Albanian asylum-seeker, Mr Spahiu was an illegal entrant to the UK who arrived in 2012. His removal was sought and directed for 1 August 2015. He challenged his removal, which was cancelled, by beginning judicial review proceedings which the Home Office offered to settle by considering and determining his asylum and human rights claims in 3 months. But the government also simultaneously filed an acknowledgement of service (AoS) detailing reasons why permission for judicial review should be refused. The offer of settlement was rejected and a reply was filed in response to the summary grounds of defence.

Subsequently, the Upper Tribunal was invited by the Home Office to refuse permission on the basis that the claim had become academic. In September 2015, the asylum and human rights claim were refused and were certified as “clearly unfounded” under section 94 of the Nationality, Immigration and Asylum Act 2002 with the result that an appeal against the decision to the FTT could be brought only from abroad. Permission to amend the grounds of judicial review, on the basis that the decision was unlawful and the approach to article 8 of the ECHR was legally flawed, by way of an application notice was sought in October 2015. Permission was refused because the removal directions had been cancelled and the claim had become academic. Equally, UTJ Chalkley also refused permission to amend the grounds of judicial review because they represented “an entirely different challenge” which needed to be considered in a fresh application for judicial review. However, a review of both decisions was sought and UTJ Rintoul heard the matter and said that directions would follow. Thereafter, without any prior warning, the former president of the Upper Tribunal gave two judgments. In the first of these, McCloskey J clarified the general rule and he also permitted the applicant to amend his grounds.

In the second judgment, R (Spahiu) v Secretary of State for the Home Department (Judicial review – Amendment – Principles) (IJR) [2016] UKUT 230 (IAC), the former president stated in the first headnote that “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.”

Both judgments nonetheless maintained that permission to amend is unnecessary “at any time up to the judicial adjudication of whether permission to apply for judicial review should be granted”. So the president found that Mr Spahiu should be allowed to rely on his amended grounds because UTJ Chalkley’s order was superfluous. The issues in the present appeal related to (i) the correct characterisation of the president’s decision, (ii) when can an amendment to grounds for judicial review be made without permission, and (iii) the extent that the then president granted permission to amend, was this decision valid: this question in turn raised three issues of jurisdiction, the merits of allowing the amendments and any procedural unfairness and a material breach of natural justice by McCloskey J’s approach.

The Court of Appeal

Against the backdrop of the authorities of Talpada [2018] EWCA Civ 841, Hickey [2018] EWCA Civ 851 and Browne [2018] EWCA Civ 2024, Patten, Hamblen and Coulson LJJ said that the present proceedings are “another reminder that, even in proceedings where unnecessary formality is to be avoided, some formality (and the certainty which it brings) is required.”

As regards the first issue the court held that while his words were opaque, the president made two separate decisions, i.e. (i) that an amendment application was unnecessary because of the early stage at which the amendments were provided, and (ii) that if he was wrong about that, the application should be granted. Coulson LJ found it necessary for the Court of Appeal to deal with the appeal on the basis that McCloskey J made two separate decisions. The approach was advantageous and allowed the court to resolve the argument about when in principle permission to amend is required (and when it is not), and to address the Home Office’s concerns about the breadth and width of the first headnote which formed the crux of the government’s concerns.

Next, Coulson LJ addressed the issue of when amendments to judicial review grounds are possible without permission. He discerned that McCloskey J had advanced two different tests in his judgments. Notably, the president first said that amendments without permission were permitted before the first judicial adjudication of the claim. Secondly, he also maintained that permission was not necessary if the amendments were made prior to the AoS. The Court of Appeal held that neither of the tests was correct and Coulson LJ found that both tests were fundamentally flawed because:

34. … they give an applicant too much leeway to create confusion, by chopping and changing the basis of the judicial review claim, which would cause the respondent to run up unnecessary costs.

His Lordship observed that rule 17.1 of the Civil Procedure Rules 1998 was the starting point. He said that while the Tribunal Procedure (Upper Tribunal) Rules 2008 deal with the Upper Tribunal’s case management powers under rule 5, no other rule specifically addresses when amendments could be made without permission.

Observably, rule 17.3 deals with amendments to statements of case with the permission of the court. The CPR contain extensive guidance as to the correct approach to amendments where permission is required, at paragraphs 17.3.1 to 17.3.8 of the White Book 2018.

The court found that in tribunal judicial reviews the claimant’s statement of facts and grounds is broadly equivalent to the particulars of claim. By analogy with rule 17.1 of the CPR an applicant seeking permission to bring judicial review proceedings in the Upper Tribunal is entitled to amend his statement of facts and grounds without permission if the amendments were made prior to service on the respondent. On the other hand, once the statement had been served rule 17.1 indicates that any amendments would require permission. Coulson LJ explained that the Tribunal Rules would clearly spell out if an approach other than the one in the CPR had been in contemplation. The court held that the same procedure as rule 17.1 applies and amendments to the statement of facts and grounds can be made without permission up to the date of service, but not thereafter. Searching for a principled method that simplified procedure, the court thought that rule 17.1 applied to the statement of facts and grounds in the same way that it does to particulars of claim and Coulson LJ reasoned that:

29. … Whilst unnecessary formality is to be avoided in public law claims, it is not unnecessary (but instead a fundamental right) that the respondent understands the claim that it has to meet when it provides its detailed response with the AoS. That can only happen if the grounds of challenge have been ‘frozen’ at the time of the service of proceedings, subject always to amendments which receive the subsequent permission of the court.

He said that once the statement of facts and grounds is received and preparation for the defence are underway, it would create confusion, delay and wasted costs if an applicant was later entitled to serve further versions “as and when new thoughts or events occurred.”

In addressing the question whether McCloskey J had jurisdiction to review UTJ Chalkley’s refusal of the amendments, Coulson LJ deciphered that the Upper Tribunal’s general power to review case management decisions found in section 10 of the Tribunals, Courts and Enforcement Act 2007 is expressly preserved by rule 6(5) of the Tribunal Rules. UTJ Chalkley’s decision was thus an order of the Upper Tribunal pursuant to rule 5 which concerns case management powers.

Wrongful reliance placed in Patel [2015] EWCA Civ 1175 and Fawad Jan [2016] UKUT 336 (IAC) failed to impress the court and Coulson LJ rejected the idea that UTJ Chalkley’s decision refusing permission to amend was a final decision, not a direction, which was incapable of being reviewed. The government’s submission was rejected for six reasons, namely (i) no justification existed for distinguishing between directions and decisions, (ii) the pointless distinction between a case management decision and a case management direction would be unnecessarily technical and impossible to operate in practice, (iii) the Tribunal Rules could have restricted the right to review so as to exclude some or all case management decisions but they do not do so, (iv) it would be counter-intuitive to read rules 5 and 6 as preventing a review of a substantial case management decision (for e.g. a strike out) but permitting a review of a decision about the preparation of the bundles, (v) since an applicant can apply for a review when permission to bring judicial review proceedings is refused on paper, it cannot be presumed that no right of review arises in relation to case management decisions, and (vi) overall the court’s approach was also consistent with common sense because many case management decisions were made on the papers, so the right of review was an important safeguard. McCloskey J therefore had had jurisdiction to review UTJ Chalkley’s decision.

Official attempts to restrict the right of review so as to exclude case management decisions from the picture were rejected by the court as “red herring” and it was clear to Coulson LJ that the decisions in Patel and Fawad Jan turned on different questions – i.e. applications for permission to appeal and the concept of excluded decisions – and they were not concerned with case management matters or the operation of rule 6(5).

Next, the Court of Appeal addressed the question whether McCloskey J had been entitled to grant Mr Spahiu permission to amend. It was possible to set aside his decision because of a procedural reason and/or some reason of principle leading to the refusal of the amendments. A procedural error was not alleged but the Home Office relied on UTJ Chalkley’s decision that permission to amend should not be granted because the target of the original challenge had disappeared (because the removal directions were cancelled) and the amendments, which related solely to the subsequent decision, constituted a completely different challenge and needed to be litigated afresh by way of new judicial review proceedings.

The Home Office complained that allowing the amendments enabled Mr Spahiu to use existing judicial proceedings as a “rolling review”, to capture new claims arising out of a later event – the decision on 17 September 2015 to refuse his asylum and human rights claims – that only occurred after the commencement of proceedings. Indeed, Tesfay [2016] EWCA Civ 415 and Ahmed [2017] EWCA Civ 118 militated against permitting judicial review proceedings to be used for the purposes of a rolling review. Turgut [2000] EWCA Civ 22 and R (O) [2011] EWCA Civ 925 pointed in the other direction because on the facts of each case the court had found it convenient to deal with a challenge to a subsequent decision in the existing proceedings. Highlighting Lloyd-Jones LJ’s approach in Tesfay where the court pointed out the difficulties both in principle and in practice that ultimately accompany a rolling or evolving review, Coulson LJ held that:

63. In short, there is no hard and fast rule. It will usually be better for all parties if judicial review proceedings are not treated as “rolling” or “evolving”, and it is generally simpler and more cost-effective for the reviewing court to avoid scrutinising post-decision material. But there will also be a need to maintain a certain procedural flexibility so as to do justice as between the parties.

Therefore, the court held that a rolling review is acceptable in principle because of the added advantage of the expeditious resolution of all the issues in the case without any recourse to further expensive and cumbersome litigation.

Overall, Mr Spahiu’s case was the type of matter in which McCloskey J had been entitled to adopt a measure of flexibility. The challenge to the removal directions was based on the article 8 claim and the challenge to the rejection of Mr Spahiu’s article 8 claim was necessarily concerned with the very same claim. McCloskey J was therefore perfectly entitled to conclude that fresh proceedings were not necessary and the amendment should be granted. The article 8 claim was inbuilt with the challenge to removal directions.

The court agreed with the Home Office that McCloskey J’s decisions were issued totally out of the blue without any warning and without any submissions from the parties. The parties were waiting to hear back from UTJ Rintoul but instead the president took control with a view to imparting guidance but unorthodoxly proceeded to decide the issues which had not been argued. Although there had been a clear breach of natural justice, the breach was not material because the Court of Appeal subsequently considered full submissions. Coulson LJ upheld the decision on permission to amend and he remitted the case to the Upper Tribunal for a substantive decision on the article 8 claim. Indeed, the court’s endorsement of McCloskey J’s adventurous intervention into a case reserved by UTJ Rintoul is a somewhat strange aspect of this judgment.

Comment

Notwithstanding the fact that the Court of Appeal disagreed with McCloskey J’s view that it is possible to amend a claim at any time before the first adjudication, this is still a very useful judgment for immigration practitioners involved in day-to-day skirmishes with the GLD in highly contested and hard-fought ongoing judicial review proceedings. Often, the government’s behaviour is deeply unsatisfactory and its legal position is simply frivolous.

“Legal officers” in the GLD bullishly defend claims at all costs on the instructions of their client. Even where no amendments to the statement of facts and grounds are being sought and an applicant is only corresponding with the Upper Tribunal (for example to point out the serious mistakes in an AoS), the GLD will resort to claiming that amendments are being sought and a fee of £255 should be paid and an application notice should be filed. Trying to obscure ground realities seems to be legal officers’ method of choice to frustrate the judicial review process. While they excessively dwell on formalism, legal officers are questionably filing papers to seek extensions of time without any witness statements or any explanation of why they have failed to deal with the formality of filing the AoS within six weeks of service of the claim. The end of the so-called Kumar arrangements should end the controversial amnesty allowing the Home Office an extra 21 days to file their AoS and from 2 January 2019 things will hopefully be very different.

The GLD objects to any type of communication with the tribunal after the filing of the AoS whereas rule 33(c) of the Tribunal Rules expressly gives a party to make “right to make representations” and “each party” is able to “make written representations in relation to a decision to be made without a hearing.” Surely, a decision on the papers must be covered by rule 33(c).

Similarly, despite the emphasis on formalism in the present judgment, it is also the case that the overriding objective of the Tribunal Rules requires the Upper Tribunal to deal with cases fairly and justly. In particular, rule 2(2)(b) expressly specifies that dealing with a case fairly and justly includes “avoiding unnecessary formality and seeking flexibility in the proceedings.” Furthermore, rule 7(2)(a) allows the tribunal to waive non-compliance with a rule, practice direction or a direction and rule 7(1) specifically states that such non-compliance does not in itself render the proceedings (or any step therein) void.

Ultimately, however, neither McCloskey J nor Coulson LJ’s decision has any real impact on those judicial reviews where the original claim has not been rendered academic by events – such as the cancellation of removal directions for example. Although any further claims must be litigated by commencing new proceedings, Coulson LJ’s finding that there are no strict rules prohibiting a rolling review is clearly disadvantageous for the Home Office. But the trait of bending the truth to offer futile resistance is common in GLD.

Unlike the distinct situation in Spahiu which was concerned with a challenge to removal directions, and the subsequent eleventh hour decision to certify the asylum and human rights claim as “clearly unfounded”, quite a large number of judicial review claims will be challenges to entry clearance refusals where no new decision will be made and so no amendment will be sought or needed. But nonetheless any correspondence (which is written to the Upper Tribunal after the AoS) will be misconstrued by the GLD as an “amendment” of the grounds and the principles established in Spahiu will be incorrectly invoked to wrong-foot the tribunal into making a procedural mistake which is adverse to the claimant’s application.

We can only hope that the GLD will behave more sensibly and responsibly in the future because at the moment their behaviour in judicial review proceedings is hugely unhelpful and counterproductive. The fact that tribunal judges are meek and mild in dealing with poorly behaved GLD representatives allows a culture of impunity to thrive and the general atmosphere is such that many judicial review claimants are suffering unnecessarily and justice is nowhere in sight.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, Asylum, Court of Appeal, Culture, ECHR, Judicial Review, Removals, Tribunals and tagged , , , , , , . Bookmark the permalink.

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