In the recent case of R (on the application of Turay) v Secretary of State for the Home Department IJR [2015] UKUT 485 (IAC) Mr Ockelton, the Deputy President of the Immigration and Asylum Chamber of the Upper Tribunal, concludes (1) that applicants for judicial review cannot supplement or amend their position but (2) the Home Office can.

It is important reading if you have been following the whole moving goalposts issue in reasons-based challenges to Home Office decisions, which the Upper Tribunal is doing its darndest to make utterly pointless by encouraging post decision amendments to reasons.

There is certainly justification for finding that applicants for judicial review are fixed with the material that was submitted to the decision maker prior to the impugned decision; as a decision maker it is rather hard to take into account material no one told you about. The real problem here lies in the tribunal’s treatment of what has become standard Home Office operating procedure:

1. Serve a cursory and obviously unlawful decision in human rights cases, presumably drafted very quickly by a very low grade civil servant.
2. Understandably unhappy with both the outcome and the reasons, the recipient of the decision decides to challenge it. Their whole future and that of their family may well depend on the outcome, after all.
3. A pre action protocol letter is sent.
4. The pre action letter is ignored by the Home Office or the decision is maintained in the teeth of an obviously strong legal challenge.
5. The application for judicial review is therefore issued.
6. Either at the next stage, when the Acknowledgement of Service is served by the Home Office or, more typically, shortly before a permission hearing, a new more senior specialist lawyer drafts a new refusal letter that has the same outcome but with much better reasons which are drafted deliberately to take account of the grounds for judicial review. As I understand it, it is quite often Counsel instructed by the Home Office for the permission hearing who does this drafting.
7. On the face of it, the very fact that the new reasons have been issued itself indicates that the old ones were flawed and unlawful, and therefore that the applicant’s case should succeed.

Great, you ought think, the judicial review therefore must succeed, the flawed decision will be quashed and applicant will be awarded his or her costs.

Wrong, on all counts.

Instead, the tribunal will allow the new reasons to be admitted into the proceedings, dismiss the application on the basis that it is redundant and, to boot, decline to award costs to the applicant. The rationale is that it is artificial to do otherwise as the this new decision will be the inevitable result if the original flawed decision is now quashed. applicant will have to challenge this new decision anyway.

The applicant can instead amend the original grounds for judicial review to meet the new, improved reasons. This will be a tougher challenge given that the new reasons are far better drafted than the originals. If unsuccessful in the new challenge, the applicant should at least be awarded costs up to the point of the new decision, but that is not happening in practice.

On costs, in Turay Mr Ockelton declares that an applicant for judicial review has a “duty of candour” that means he must reveal weaknesses in his case, even in a with-notice normal application. It certainly is the case that any weaknesses must be notified in an ex parte application; it might be thought that it follows that it is not the case that they must in normal applications. Mr Ockelton would at least make this a costs issue, though, and sufficient justification for awarding the Home Office their costs in the case despite serial breaches by the Home Office of even the relaxed procedure “rules” the tribunal unilaterally amended in the case of Kumar.

Contrast the approach of the Upper Tribunal to its new found costs powers against the approach of Mr Justice Hamblen, a seasoned judge of the High Court, in the recent case of R (on the application of Younguimissa-Ntsoko) v Secretary of State for the Home Department [2015] EWHC 2637 (Admin). The claimant’s case was dismissed and Counsel for the Home Office pressed for the normal award of costs. Hamblen J response was to say:

I am not very sympathetic to that application in view of your history of default. It seems to me that that should be marked in some way by the court.

He then goes on to make no order for costs with the following reasons given:

In the ordinary course I would make some order for costs in favour of the interested party in this case, who has provided an acknowledgement of service and provided assistance to the court but it is a matter of discretion and I am concerned about the history of this matter and the fact that the interested party has persistently ignored orders of the court … So I do think it is right that this court makes it clear that if a deadline is given it expects it to be observed and costs should not be incurred, as they have been in this case, by both parties as a consequence of non-observance of those timings.

Hamblen J was a brilliant QC with huge experience of commercial litigation and costs issues, has been a judge dealing with costs since 1999, a High Court judge since 2008 and has now been appointed to the Court of Appeal.

Contrast also the approach of the Upper Tribunal with the recent comments of McCoombe LJ in R (Sabir) v Secretary of State for the Home Department [2015] EWCA Civ 1173, reiterated again in R (On the Application Of Idira) v The Secretary of State for the Home Department [2015] EWCA Civ 1187 in which concern was expressed about

a pattern of delays on the part of this particular respondent in complying with the rules as to the time for filing respondents’ notices

The “particular respondent” is the Secretary of State for the Home Department and the Court of Appeal is signalling a willingness to penalise poor litigation conduct with awards of costs.

The Upper Tribunal lacks the experience, self respect and self confidence needed to enforce its own rules in an even handed way. Its own clear institutional bias towards the Home Office reflected in the one-sided enforcement of procedure rules is hardly helping.