Since 2014 the Upper Tribunal has permitted the Home Office double the normal time limit set by the procedure “rules” for responding to an application for judicial review. Instead of having the 21 days proscribed by the “rules” to respond to a claim, in a case called Kumar [2014] UKUT 104 (IAC) the tribunal said that the Home Office would be allowed a default 42 days in which to respond.

The rationale was that the Home Office was already breaking the “rules” systematically because of organisational and resource issues. Rather than requiring the Home Office to comply with the “rules” and sanctioning the Home Office for any failure to do, for example through decisions on costs, the answer was instead to change the “rules”. The new “rules” were supposed to be kept under regular review and last a matter of months.

That was in 2014.

Claimants have long complained that this one-sided variation of procedure “rules” was unfair and unlawful. Apart from anything, the resources and organisational issues arising from immigration practice are hardly all one way. Legal aid rates are a fraction of commercial rates and organising a legal practice around Home Office habits such as no-notice detentions and group charter flights is extremely challenging.

To make matters worse, while the tribunal was supremely supine in the face of systematic Home Office non compliance with the “rules”, the same tribunal came over drastically draconian in enforcing procedural requirements imposed on claimants.

Claims, including by unrepresented litigants in person, were subject to automatic strike out for late submission of the T485 form proving service of a claim on the Home Office. That is not a sanction imposed by the “rules”; the tribunal decided of its own volition to implement its own policy of automatically striking out in those circumstances. It took a test case to persuade the tribunal to rethink.

In contrast to the automatic strike out faced by claimants, the tribunal decided as a matter of judicial policy to award costs in favour of the Home Office even in the teeth of breaches of the time “rules”. This contrasted with High Court cases penalising the Home Office for the same thing.

The tribunal also decided to breach the terms of the procedure rules by preventing one solicitor lodging more than two judicial review claims after 1pm. Why would a solicitor want to do this, you might ask, and why might a situation be urgent? Perhaps because of the Home Office practice of rounding up a bunch of clients of the same nationality to remove them on a charter flight. Refusing to accept multiple applications was therefore deeply problematic.

Rules are “rules”, after all.

At the same time, judges have lamented the mysterious perceived decline in respect for tribunal procedures, directions and “rules”.

In a belated review of the Kumar arrangements the Upper Tribunal maintains that the unilateral variation of the procedure rules to favour one of the parties and the general relief from sanctions afforded that same party was entirely lawful and within the tribunal’s powers. The new case is R (on the application of KA & Anor) v Secretary of State for the Home Department (ending of Kumar arrangements) [2018] UKUT 201 (IAC).

It would have been surprising if the tribunal had concluded it had been acting unlawfully all along, particularly given the panel of judges was almost identical to the original case. The tribunal notably ducks the ratio in the case of Bovale Ltd v the Secretary of State for Communities and Local Government and Another [2009] EWCA Civ 171, in which the Court of Appeal held:

a judge is not free, and indeed has never been free once rules were made by delegated legislation, to announce that without regard to the particular circumstances of individual cases, the court now intends generally to disapply or vary the rules … parties are entitled to start from the position that the relevant rules and practice directions will apply to their case; the onus will be on the party seeking a different form of process and indeed on the judge who may of his own motion wish to exercise his case management powers in a particular case to demonstrate that the case is outside the norm. What Collins J was not entitled to do was to put the onus entirely the other way round and impose an onus on a defendant to persuade the court that some procedure inconsistent with the rules and practice directions should not be followed. The right way to alter the rules is through the rule committee and the right way to alter a practice direction is under the section 5 procedure.

The rationale for distinguishing Bovale is there are multiple “significant differences”. Note the plural. The only difference identified is that, allegedly, there was an “expectation” in Kumar that the Secretary of State “would continue to try to file an acknowledgement of service within the period prescribed by rule 29(1).”

Some might think that the word “expectation” is somewhat overdoing it. I prefer Chambers, which tells me

expectāˈtion /eks-/ noun

1. The act or state of expecting
2. The prospect of future good
3. That which is or may fairly be expected
4. That which should happen, according to general norms of custom or behaviour
5. The degree of probability
6. The value of something expected
7. (in pl) prospect of fortune or profit by a will

No-one but no-one, least of all the Home Office, actually “expected” the Home Office to comply with the 21 day “rule.”

Nevertheless, the tribunal has decided that, four years down the line, the Kumar arrangements should end and the Home Office should be expected to comply with the supposedly universal procedure “rules”. Home Office compliance will be expected in new claims lodged on or after 1 January 2019. Claimants, it goes without saying, have to continue to comply all the time, as was ever the case.

This will finally end what some might consider to be an entirely self inflicted, shameful and openly one-sided episode in the tribunal’s history.