Many of us have been in the situation where, having challenged the opening of a removal window without a decision having made on an outstanding human rights claim, an 11th hour decision comes from the Secretary of State, along with submissions that our claim is now academic.

Where the decision is of poor quality and is certified to carry no right of appeal, it is clear that if we cannot amend the grounds for judicial review, we must bring a second judicial review, drawing on tribunal resources, the limited funds of the client, or on legal aid. When is this necessary?

When do you need permission to amend grounds for judicial review?

In Secretary of State for the Home Department v R (Spahiu) [2018] EWCA Civ 2604, the Court of Appeal considered just such a set of facts. The messy procedural history of the case before the Upper Tribunal provided the Court of Appeal with an opportunity to provide fairly comprehensive guidance on amending grounds for judicial review before the Upper Tribunal.

Rule 5 of the Upper Tribunal Procedure Rules 2008 is silent on when amendments can be made without permission. The Court of Appeal concluded that the Rules should be interpreted to follow the Civil Procedure Rules at 17.3 Amendments to Statement of Case, read with White Book 2018 at paragraphs 17.3.1 to 17.3.8. Grounds can be amended, without the need for permission and without incurring any fee, up to the point where they are served on the Respondent (paragraph 27 of the judgment). Thereafter, it is necessary to apply for permission and to pay a fee, now a hefty £225 (see the Upper Tribunal (Immigration and Asylum Chamber) (Judicial Review) (England and Wales) Fees Order 2011/2344, Schedule 1 at 2.1).

The requirement to obtain permission avoids giving the “applicant too much leeway to create confusion, by chopping and changing the basis of the judicial review claim, which would cause the respondent to run up unnecessary costs” (paragraph 34).

Can a decision to amend be reviewed?

The case involved the Upper Tribunal revisiting a decision to refuse permission to amend. The Court of Appeal concluded that a decision refusing permission to amend was an order of the Upper Tribunal pursuant to Rule 5 of the Upper Tribunal Procedure Rules. As to jurisdiction to review, Rule 6(5) provides “unequivocal” right to a review of such orders (paragraph 46).

The Court of Appeal had regard to section 10 of the Tribunals, Courts and Enforcement Act 2007:

10 Review of decision of Upper Tribunal

(1) The Upper Tribunal may review a decision made by it on a matter in a case, other than a decision that is an excluded decision for the purposes of section 13(1) (but see subsection (7)).

(2) The Upper Tribunal’s power under subsection (1) in relation to a decision is exercisable–

(a) of its own initiative, or

(b) on application by a person who for the purposes of section 13(2) has a right of appeal in respect of the decision.

(3) Tribunal Procedure Rules may–

(a) provide that the Upper Tribunal may not under subsection (1) review (whether of its own initiative or on application under subsection (2)(b)) a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules.

…

(8) A decision of the Upper Tribunal may not be reviewed under subsection (1) more than once, and once the Upper Tribunal has decided that an earlier decision should not be reviewed under subsection (1) it may not then decide to review that earlier decision under that subsection.

The Court of Appeal observed that “although, pursuant to s.10(3), the Upper Tribunal Procedure Rules could have restricted the right to review so as to exclude some or all case management decisions, they do not do so” (paragraph 48). Thus there is no distinction to be made between “decisions” and “directions” that would limit such a right of review.

The court records that Rules 30(3) and (4) of the Rules relate to substantive decisions on the merits, not case management decisions (paragraph 54).

The Court of Appeal held that “in accordance with s.10(8), any right to review is not limitless. There will be one original decision, which is capable of being reviewed and affirmed or set aside on one occasion only” (paragraph 49).

When will a review succeed?

The Court of Appeal identified two reasons why it might interfere with the decision of the Upper Tribunal: “if there was a procedural reason that meant that the amendments should not have been allowed, or if there was a reason of principle that should inevitably have led to the amendments being refused” (paragraph 57).

It found no procedural reason, agreeing with the Upper Tribunal in not identifying any significant issue “of delay or prejudice” (paragraph 58). It glossed the judgment of the then Lord Justice Lloyd Jones in R (Tesfay) & ors v Secretary of State for the Home Department [2016] EWCA Civ 415 at paragraph 78 as

there is no hard and fast rule. It will usually be better for all parties if judicial review proceedings are not treated as “rolling” or “evolving”, and it is generally simpler and more cost-effective for the reviewing court to avoid scrutinising post-decision material. But there will also be a need to maintain a certain procedural flexibility so as to do justice as between the parties.

In Spahiu’s case it considered that the Upper Tribunal’s flexible approach was one that it had been entitled to adopt:

The challenge to the removal directions was based on the respondent’s Article 8 claim. The challenge to the decision to reject his Article 8 claim (the subject of the amendments) was necessarily concerned with the very same claim. This is not a case about supplementary decisions and the like. The claim has always been founded on the same basis…

This will be music to the ears of immigration lawyers, albeit that the court accepted that other Upper Tribunal judges might, legitimately, have reached a different view. But it is to be hoped that it will put an end to hearing “rolling review” invoked as a reason not to continue the judicial review where this is the most sensible and expeditious way to resolve a case.

The court held that the messy proceedings before the Upper Tribunal amounted to a breach of natural justice (paragraph 68), the President having leapt in and decided the matter on the papers while it was still pending for an oral hearing before another judge. But the breach was not material because the conclusion he had reached was one he was entitled to reach (paragraph 71). This is of concern. It appears to open the door to a more senior judge, desirous of giving guidance, whisking the case away from the judge who best knows it and who has been dealing with it to date without criticism. It is difficult to envisage a situation in which either party would feel comfortable with that way of proceeding.