New Presidential Guidance on litigation friends in the tribunals

The presidents of the Upper Tribunal (Immigration and Asylum Chamber) and First-tier Tribunal (Immigration and Asylum Chamber) have published the Joint Presidential Guidance No. 1 of 2024: Appointment of litigation friends, to help those who lack capacity to conduct their own tribunal proceedings.

In the immigration tribunals context, the power to appoint a litigation friend for those who lack litigation capacity has been established since the cases R (C) v First-tier Tribunal and others [2016] EWHC 707 (Admin) and AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123. Following a threat of legal challenge from Migrants Organise, the Official Solicitor also now acts as a litigation friend of last resort in the immigration tribunals.

Up until now however, there was no clear guidance on the procedure around the use of litigation friends in the immigration tribunals. The case of R (JS and Others) v Secretary of State for the Home Department (litigation friend – child) [2019] UKUT 64 (IAC) provided some guidance in Upper Tribunal judicial reviews involving children.

The lack of clear guidance is an issue that we have identified under our Migrants Mental Capacity Advocacy project from the beginning as it has led to a lot of confusion in practice. We have had cases, for example, where the tribunal refused to grant adjournment to allow time to find a suitable litigation friend even though a very clear assessment had been provided. Likewise, there were cases where the tribunal seemed to confuse the role of a litigation friend with that of a McKenzie friend.

The Presidential Guidance therefore is very much a welcome step forward to introduce some clarity into this area of practice.

Vulnerable party vs mental capacity

A key part to note is paragraph 3-6 of the Presidential Guidance which distinguishes clearly between the concept of: ‘vulnerable party’ and litigants who lack capacity to litigate:

An assessment of capacity is distinct from making reasonable adjustments to accommodate a party or witness’s vulnerabilities or particular needs.

This is an important concept to grasp: while the two concepts can have a significant overlap, individuals can lack capacity to litigate whilst not necessarily presenting as ‘vulnerable’ and vice versa.

For example, we have worked with an individual who suffers from delusional disorder and believes that they are British. They therefore lack capacity to instruct their immigration solicitor. At the same time, they present very well they are able to manage day to day activities without any issue and don’t often present as ‘distressed’. In such a case, the person will still require a litigation friend who can then decide whether it would be in their best interest to still participate in the hearing, and if so, to what extent and what adjustments would be required.

When working with individuals in this cohort, always be very clear what is being raised: is it that the appellant lacks litigation capacity and they require a litigation friend? That they require certain adjustments to be able to participate fully and safely in the proceedings? Or both?

Unrepresented litigants

With so many individuals unrepresented at the moment due to the current crisis with legal aid, it is also important to note that the Presidential Guidance has made clear [para 22] that the “Tribunal may raise the issue [of mental capacity] of its own motion where there are cogent grounds for doing so”. Cases where a litigant who lack capacity is unrepresented is also provided as an example when an adjournment might be appropriate [para 23]: “For example, the need to adjourn may arise where the party appears unrepresented before the Tribunal and the tribunal identifies of its own motion that capacity issues may need to be explored”

At Migrants Organise we have dealt with a few cases where we are assisting individuals who have issues with their mental capacity. At the same time, we are not acting as their immigration representative because their case is too complex and need to be handled by a legal aid provider so that expert reports can be obtained.

In such a case, we would raise a safeguarding concern with the tribunal which outlines our concerns regarding the person’s litigation capacity, the support that our organisation is providing, and importantly, the support that we cannot provide (for example, whether we would be able to attend a case management review to speak with the judge). In that letter we would also then include any recommendation that we have. For example, if we strongly believe that the person does lack litigation capacity (rather than an issue that needs further investigation), then we would recommend the appointment of a litigation friend, and/or for the tribunal to contact the Official Solicitor for assistance (paragraph 30 of the guidance can be referenced).

Feedback

While the Presidential Guidance is a great step forward it is far from prefect. Those with keener eyes than I probably have noticed a slight error at paragraph 18 in terms of the order of capacity assessment.

In A Local Authority v JB (by his litigation friend, the Official Solicitor) [2021] UKSC 52, the Supreme Court confirmed that the functional test needs to be carried out first, i.e. whether the person is “incapable” of making a particular decision. Only once this is established that one assesses whether the inability is “caused by a disturbance of the mind or brain”. This is currently reversed in the guidance.

The guidance is due to be reviewed six months after publication, it is therefore important for practitioners to provide as much feedback as possible. I am happy to be contacted regarding this or ILPA’s courts and tribunals working group is also a great channel to report experiences of using this new guidance