Reported Case

In this case, KA & Anor complained to the Upper Tribunal that the continued applicability of the Kumar arrangements in R (on the application of Kumar and Another) v Secretary of State for the Home Department (acknowledgement of service; Tribunal arrangements) (IJR) [2014] UKUT 104 (IAC), was unlawful, and the arrangements, which were only intended to be temporary, should be ended forthwith.

History of the Kumar Arrangements

In the case of R (on the application of Kumar and Another) v Secretary of State for the Home Department (acknowledgement of service; Tribunal arrangements) (IJR) [2014] UKUT 104 (IAC), the Upper Tribunal permitted the Secretary of State for the Home Department (SSHD) 42 days to file and serve an Acknowledgement of Service (AoS) in response to an application for permission to apply for Judicial Review, instead of the 21 days time frame specified in Rule 29 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

In Kumar, the Home Office expressly accepted that they were routinely breaching Rule 29, but sought to justify their systematic failure to file and serve an AoS within 21 days, on the basis of organisational and resource issues.

Instead of requiring the Home Office to comply with Rule 29 and imposing sanctions for repeatedly breaching it, the Upper Tribunal waived the requirement for the Home Office to have to comply with the order.

However, the Upper Tribunal made it particularly clear [at paragraph 70 of Kumar], that the Tribunal would keep these new arrangements under “regular review”, as they were only intended to be “a temporary response to what has been presented by the Secretary of State as a temporary systemic problem affecting her ability to comply with the relevant requirements of the Rules.”

Ending of the Kumar Arrangements

As a direct result of KA’s complaint, the Upper Tribunal belatedly undertook a review of the Kumar arrangements. KA and another applicant were selected by the Upper Tribunal as suitable cases for scrutinising the validity of Kumar’s ongoing applicability to all Judicial Review claims against the SSHD.

The SSHD initially sought to argue that the Kumar arrangements should be permitted to continue. However, following the weight of the compelling evidence presented by KA, which confirmed that the Kumar arrangements were having a significantly adverse effect upon Applicants, and that the continual Rule 29 breaches showed little discernible signs of improvement in compliance, the SSHD revised her position. Alternatively, the SSHD proposed a phased return to compliance with Rule 29, over a continuous period in excess of one year.

Following the hearing, which took place on 22 May 2018, in a decision dated 13 June 2018, the Upper Tribunal rejected the SSHD’s proposal for a phased return to compliance with Rule 29 [at paragraphs 48 to 49], expressly on the basis put forward by KA:

‘The applicants oppose the Secretary of State's proposal for a phased return, described by Mr Davidson. In his witness statement, Trevor Hatton, Director of Public Law of Duncan Lewis, has this to say:-

‘“A timetable for phased compliance, particularly one contained in a judgment rather than the relevant Tribunal Rules, will inevitably prove problematic for busy practitioners and time-pressed duty judges alike, as implementation will entail calculating varying deadlines based upon precisely when a Judicial Review claim was originally lodged.

‘“I am additionally concerned that litigants in person will find it far harder to navigate, let alone monitor, the Respondent's compliance with a phased compliance timetable, especially as litigants in person will look to the Rules and correspondence from the Upper Tribunal, for guidance on how their cases will handled, as opposed to jurisprudence of which they are unlikely to be aware.”

‘There is force in this. We do not consider that a phased return is appropriate. We have concluded that the Kumar arrangements should cease altogether on a particular date.’

The date which the Upper Tribunal arbitrarily chose to end the Kumar arrangements, was set at 1 January 2019.

As the SSHD has decided not to appeal the Upper Tribunal’s decision, as a direct result of KA, the Kumar arrangements will now end on 1 January 2019.

The Appeal

However, this is not the end of the matter, as during these proceedings, KA additionally sought to argue that the Upper Tribunal’s unilateral variation of Rule 29 was unlawful, and ultra vires, for being outside of the Upper Tribunal’s powers.

As the Upper Tribunal rejected KA’s argument that the imposition of the Kumar arrangements was in itself unlawful, KA has now seek to sought permission to appeal this point to the Court of Appeal.

In making this appeal, it is KA’s position that the power to amend or revoke any Upper Tribunal Rule rests with the Lord Chancellor and not the Tribunal, and the power to do so is governed by statute.

The Tribunal’s position in KA is particularly problematic, because they have expressly sought to distinguish the requirements specified in the Civil Procedure Rules (CPR’s) for filing and serving an AoS in the Administrative Court from Rule 29, on the basis that unlike the CPR’s, the Upper Tribunal’s Procedure Rules carry no sanction for a Respondent’s failure to comply with the 21 days’ time limit.

It is for this reason, that the decision in KA has particularly unpalatable implications. If the Tribunal’s interpretation of Rule 29 is correct, it effectively means that there is no deadline for the submission of an AoS and that the only consequence of failure to meet the 21 days deadline is that the Tribunal may reach a decision on a Judicial Review claim before the Respondent has made any submissions. Furthermore, this would also mean that any AoS received before the Tribunal considered a claim would be valid and unaffected by the failure to meet the 21 days’ mandatory deadline in Rule 29, no matter how late it is received.

In effect, by seeking to materially distinguish the construction of Rule 29 from that of the corresponding provision of the CPR’s, the Upper Tribunal’s interpretation has rendered it ineffective.

This interpretation will be particularly disturbing to practitioners of public law, who will be highly aware of the Upper Tribunal’s willingness to strike out Judicial Review claims for relatively minor breaches of the Rules. The Tribunal’s contrasting leniency towards Respondents, who file an AoS many months out of time, is strikingly incongruous.

It is therefore clear that KA’s appeal raises very significant issues of wider public importance, as it concerns not only the interpretation of Rule 29 in the Immigration and Asylum Chamber, but all other Upper Tribunal jurisdictions.

Now the permission to appeal to the Court of Appeal has been pursued, it remains to be seen whether the Upper Tribunal’s construction of Rule 29 will be permitted to stand.

Representation

KA is represented by Louise Hooper, of Garden Court Chambers, instructed by Trevor Hatton, of Duncan Lewis Solicitors.

Trevor is a Director of Public Law and Immigration at Duncan Lewis. Trevor has amassed extensive experience in virtually every aspect of immigration law, and specialises exclusively in Judicial Review and Court of Appeal cases. On 1 June 2016, he became the 50th lawyer in England and Wales to obtain the Immigration Law Advanced Accreditation from the Law Society. In recognition of this expertise and excellence Trevor is ranked and recommended by Legal 500 2017 as a 'notable individual’ for Public Law.

Contact Trevor on 020 7275 2884 or via email at trevorh@duncanlewis.com.

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