Reported Case

This judgment deals with the principles on the procedural approach of the Upper Tribunal in immigration judicial review proceedings involving an applicant who is a child, specifically when it is necessary for a child to be represented by a litigation friend. It also has relevance to statutory appeals in the First-tier and Upper Tribunal of the Immigration and Asylum Chambers.

All the applicants in the case are children and we represented NL. Although the court stated a litigation friend will only be necessary in the instance that the child is not capable of conducting or giving instructions in relation to the proceedings and that all cases should be fact specific. The court gave the following guidance in paragraphs 84-88 as to when a litigation friend is necessary:

84. Accordingly, as a general matter, we consider that applicants aged 16 or 17 years, without any attendant vulnerability or special educational need or other characteristic denoting difficulty, will be presumed to have capacity and so be able to conduct proceedings in their own right. They will generally not require a litigation friend. This is the position even if they are not legally represented.

85. The appointment of litigation friends for applicants between the ages of 12 years and 15 years inclusive (i.e. 12 and over but younger than 16) will need to be considered on a case-by-case basis and the circumstances which should be considered, but which are not exhaustive, are (a) whether the applicant is legally represented; (see below); (b) whether there is an assisting parent; (c) whether there is a local authority involved (see above); and (d) whether the applicant has any type of vulnerability.

86. If an applicant in this age group is legally represented, the Tribunal will expect the representative specifically to address in writing the issue of whether, in the representative's view, a litigation friend is necessary, having regard to capacity and the position of any parent.

87. Applicants under the age of 12 will normally require a litigation friend.

88. Clearly there may be children over the age of 16 years who do not have capacity and those under 16 years who do. The approach must depend on all the circumstances as to whether to appoint a litigation friend.

The Tribunal further noted that “Ultimately, it is for the Tribunal to determine how best child capacity can be demonstrated [91]."

In the case of NL, Olaide Osazuwa (the Solicitor with conduct) filed a witness statement attesting to NL’s capacity. The court pointed out that ‘Where a child is legally represented, it should be for the solicitor with conduct of the case to file a witness statement… attesting to the child's capacity, as in the case of NL.’

In deciding who is to be a suitable litigation friend, the court had regard to the Civil Procedure Rules (CPR) guiding principles. They are:

1. Can he or she fairly and competently conduct proceedings on behalf of the child?


2. Does he or she have an interest adverse to that of the child?

The court also pointed out that, where appropriate, the Tribunal may require an undertaking on costs as part of a duty of a litigation friend in Judicial Review proceedings but not in statutory appeals in the First-tier Tribunal and Upper Tribunal. The court further stated that costs should not be a deterrent to a child accessing justice and ‘all cases will be fact-sensitive as regards costs in addition to the substantive issues.’ [para. 99]

The Tribunal will be very unlikely to declare invalid proceedings for those that commence without a litigation friend, except in the instance that the Tribunal later considers they require one.

The court indicated that the High Court form of N235 should not be used in Upper Tribunal proceedings. The Tribunal may, in due course, produce its own form, but in the interim an indication should be made on the claim form where a litigation friend is sought. The Secretary of State can also indicate that a litigation friend is required in her Acknowledgment of Service.

This case provides clear guidance stating that the Secretary of State is also expected to file in full her Acknowledgment whether or not a litigation friend has been appointed.

Representation

Counsel for the appellant was Justine Fisher, of Lamb Building, who was instructed by Olaide Osazuwa, an Immigration Solicitor, and Director Bernadette Adusei, both from Duncan Lewis Solicitors.

 

Find full details of this case on Bailii’s website here.