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Tribunal gives guidance on power to strike out in immigration judicial review

In a recently reported case on a renewed application for permission to proceed with a claim for judicial review, the Tribunal has flexed its muscle again and demonstrated its willingness to use even the most draconian of mechanisms in the Procedure Rules to remedy omissions or short-comings at the interim relief or permission stage. The President of the Upper Tribunal has given guidance on the power of strike out under rules 7 and 8 of The Tribunal Procedure (Upper Tribunal) Rules 2008: R (SN) v SSHD [2015] UKUT 00227 (IAC). By any reckoning the conduct of the Applicant’s representatives was particularly egregious and the President expressed sadness at having been driven to the extremes of making orders to strike out the applicant’s case under r. 8(3) of the Procedure Rules 2008, to refuse to reinstate under r. 8(5) and to order wasted costs against the Applicant’s solicitor and counsel under r. 10(3)(d) of the same.

In summary, the applicant was removed to Sri Lanka at a time when there remained an extant application to renew orally her application for permission to apply for judicial review which signalled the beginning of a series of substantial defaults on the part of her legal representatives who intimated a desire to amend the claim so as to challenge the legality of the applicant’s removal at the oral hearing causing it to be aborted. The next hearing also had to be adjourned for failure to comply with orders previously made without explanation or apology.

The Tribunal was invited to strike out the claim drawing attention to recent jurisprudence from the Court of Appeal on the approach to applications for extensions of time for filing notices of appeal which were held to apply fully to the discretionary power to strike out the whole or part of proceedings as was the importance of the overriding objective. The first stage was to identify and assess the seriousness and significance of the failure to comply with any rule, practice direction or court order which engages CPR r. 3.9. The second, to consider why the default occurred and the third to evaluate all the circumstances of the case so as to enable the court to deal justly with the application.

Applying this three-stage approach to the claim at hand, the President considered the failures by the applicant’s representatives to comply with orders of the Upper Tribunal was ‘not less than egregious’ and amounted to a misuse of the process of the Tribunal. This was on account of the extensive periods during which they endured, the failure to request that either order be varied, the failure to request an extension of time for compliance, the absolute and outright nature of the disobedience to both orders, the abject lack of communication with both the Upper Tribunal and the other party’s representatives during the periods in question, the failure to take advantage of belated and unexpected opportunities to comply and, finally, permitting three successive hearings to be arranged in circumstances where the Applicant’s representatives were fully aware that the pre-requisites to any of the hearings proceeding was not satisfied. The more egregious a breach the more compelling any explanation would need to be and in this case nothing approaching a reasonable or acceptable explanation was provided. In the face of “grave disrespect for the Upper Tribunal” there was “no other way of addressing the egregious defaults” than to strike out the case. Even a wasted costs order was considered to be manifestly insufficient in the circumstances.

The President said this:

The Tribunal will also be mindful of the draconian nature of an order striking out an appeal. It spells the end of the proceedings, subject only to an application to reinstate under rule 8(5). Self evidently, the gravity of the default under consideration and the consequences thereof will be relevant considerations. Furthermore, the extent to which the proceedings have been obstructed or delayed by the relevant default will be taken into account. Prejudice to the other parties will also be a material factor. The scope for making a wasted costs order under rule 10(3) and the question of whether this would be an appropriate and ade quate sanction will also be weighed. Repeated defaults will almost invariably be considered more serious than a single act of non-compliance. Finally, the Tribunal will in every case  consider the question of whether its process is being misused.

In addition to wishing to underline the importance of written pleadings in all judicial review cases, the President ventured to highlight the main standards and principles which are to be observed. A challenge to a superseded, historic decision would be rarely appropriate. Amendment of the grounds will also be necessary to reflect the advent of this new fact and to incorporate any additional facts. The Respondent SSHD’s consent and the Tribunal’s permission would need to be sought proactively (e.g. for a revised timetable) in every case and it would rarely be necessary to convene a hearing for this purpose.

The decision in R (SN) follows a series of cases in which the Upper Tribunal has been keen to issue guidance to representatives about the standards it expects to be honoured by parties to litigation in its judicial review jurisdiction, and the consequences of failing to honour those professional obligations. The importance of proactive case management by representatives and compliance with court orders was discussed in the context of the duty of candour in R (Bilal Mahmood) v SSHD [2014] UKUT 439 (IAC).   It has also been reiterated in relation to consent orders (R (Jowanski Muwonge) v SSHD [2014] UKUT 00514 (IAC)) and wasted costs (R (Okondu and Abdussalam) v SSHD IJR [2014] UKUT 00377 (IAC)). The Upper Tribunal has not shied away from imposing sanctions on both parties. In relation to the failure by the Respondent Secretary of State to file or serve an acknowledgement of service on an Applicant this may result in an inability to take part in a permission application: R (Isaac Kimondo) v SSHD IJR [2014] 00565 (IAC). For applicant representatives, the Tribunal has recognised the distinction between the right of access to court on the one hand with an entitlement for an applicant to advance a weak case and have it adjudicated upon and on the other hand, advancing an unarguable case in a professionally improper manner. The consequences of failure to discharge the duty of candour to the Tribunal are: refusal of permission; conclusion that there has been a misuse of the judicial review process; adverse costs implications extending to practitioners; convening disciplinary “Hamid” hearings to explain in person; and even referral to a professional body.

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