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Amending Grounds in Judicial Review Proceedings

The President of the Upper Tribunal (Immigration and Asylum Chamber) has recently given guidance on the correct approach to be adopted in applications to amend grounds in judicial review proceedings in R (on the application of Spahiu and another) v Secretary of State for the Home Department (Judicial review – amendment – principles) IJR [2016] UKUT 00230 (IAC).

The guidance provides that the exercise of judicial discretion to permit judicial review grounds to be amended will mainly involve the Tribunal deciding whether the proposed amendment discloses an arguable ground. Any issue of delay will also be identified and considered. The general approach is to permit amendments to ensure that the issues really in dispute between the parties secure adjudication and to enable the Tribunal to deal with cases fairly and justly. The broader importance of a significant issue will also be a highly material factor.

The President observes that up until the Respondent lodges an Acknowledgement of Service (‘AOS’), an applicant can, without having to make a formal application for permission to amend the grounds, simply lodge another claim form containing amended grounds and serve this on the Respondent. But from the date of the Respondent’s lodgement of the AOS, any application to amend the grounds requires a formal application to be made in writing with the appropriate fee. The application will be on notice and will therefore require the higher fee of £255 to be paid.

Where the Tribunal has directed amended grounds to be drafted, absent any direction to the contrary, a formal application to amend is not required and will normally be a without notice application incurring the smaller fee of £100.

The case sets out the full list of fees applicable in Judicial Review processes in Immigration and Asylum Chamber of the Upper Tribunal as of 21 March 2016.

The guidance suggests that ‘significant justification’ is required to revive a ground of judicial review upon which permission has been refused. It also says that where to permit an amendment results in the hearing date being vacated, fairness, reasonableness and the overriding objective may combine to defeat the application; and, in respect of an amendment which requires the preparation of a substantially amended pleading by the Respondent, the price of an amendment may involve the payment of costs consequently incurred.

The case is also potentially significant for what is said about a distinction between applications to amend grounds and “an application to amend the Respondent’s decision under challenge”. Given the strong general prohibition in contemporary litigation against rolling review by the Upper Tribunal in judicial review proceedings; where the Respondent has agreed to the quashing of the impugned decision, the Tribunal will consider it inappropriate to stay proceedings for judicial review rather than conclude them. The situation is more nuanced, it is suggested, where the Respondent agrees only to “reconsider” the impugned decision. The guidance suggests that only in exceptional circumstances will it be inappropriate for the Tribunal to conclude the proceedings in those circumstances, rather than stay them. However, it is noted that the rationale for this, drawn as it is from the “substance” of a case decided by a former President of the Tribunal in R (Rathakrishnan) v SSHD [2011] EWHC 1406 (Admin), was a case where the agreement to reconsider was an agreement to quash the decision under challenge. The Respondent had decided that she would no longer rely upon a decision in respect of which permission had been granted and invited a claimant to agree to the quashing of the decision and for the representations made prior to the impugned decision to be reconsidered. The claimant in that case had sought to postpone the effective quashing of the decision on the basis that the applicant might, at some later stage, bring a different challenge in respect of a different decision based on different evidence without having gone through the necessary applications including payment of fees. It would therefore appear that the case cited within the case of Spahiu provide any significant justification for the Tribunal not to stay proceedings where the Respondent agrees to reconsider an impugned decision but does not agree to its withdrawal.

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