Practice statement: Immigration judicial reviews in the Immigration and Asylum Chamber of the Upper Tribunal (UTIAC) on or after 1 November 2013
Immigration and Asylum Chamber (Upper Tribunal)Practice Guidance
Introduction
1.1 This Practice Statement supplements the Senior President’s Practice Direction (PD) in respect of applications for judicial review, where the application and the proceedings to which it relates are designated as an immigration matter, either in a direction made by the Lord Chief Justice in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005, or in an order made under section 31A(3) of the Senior Courts Act 1981, transferring a specific application from the High Court to the Upper Tribunal (hereafter the proceedings).
1.2 The direction and the PD are available on the Senior President’s website.
1.3 References in this statement to the Upper Tribunal are references to the Immigration and Asylum Chamber of the Upper Tribunal; and references to Rules are to the Tribunal Procedure (Upper Tribunal) Rules 2008 as amended, available at the same location.
1.4 This Practice Statement replaces the Practice Statement: Fresh Claim Judicial reviews in the Immigration and Asylum Chamber of the Upper Tribunal on or after 29 April 2013.
Permission applications
Lodging
2.1 An application for permission to bring the proceedings may be made direct to the Upper Tribunal, where the application is designated as an immigration matter in the Lord Chief Justice’s direction. That application may be filed at Field House, London or at one of the regional centres of that Tribunal. An application made to the High Court which falls within the Lord Chief Justice’s direction will be transferred to Upper Tribunal, to be dealt with by that Tribunal. So too will any application that the High Court decides in the exercise of its discretion under section 31A(3) to transfer to the Upper Tribunal as an immigration matter. The relevant forms for an application to the Upper Tribunal may be found on GOV.UK (external link), where there is also some guidance on their completion and submission.
Considering permission
2.2 The application for permission will not be considered before the time for lodging an Acknowledgment of Service (AOS) has expired unless:
i. the Respondent has indicated that no AOS will be lodged or has asked for urgent consideration of the application;
ii. an application for urgent relief to prevent removal has been refused and the judge considers it is appropriate to refuse the application for permission at the same time.
2.3 An application for an extension of time to lodge the application will be determined at the same time as the application for permission and permission will not be granted unless extension of time is allowed.
Extension of time
2.4 An application for an extension of time will be refused unless:
i. Satisfactory written reasons are given why the application was not made promptly and in any event within three months of the decision under challenge. In deciding what is “prompt” regard may be had to any relevant time limits for statutory appeals.
ii. Any factual assertion made in the explanation is supported by evidence or an explanation of why such evidence has not been lodged.
No jurisdiction
A judge considering an application for permission made to the Upper Tribunal must transfer the application to the Administrative Court if the application is not within the Lord Chief Justice’s direction. In such a case, the High Court may, nevertheless decide that the application should be transferred to the Tribunal on a discretionary basis (see paragraphs 1.1 and 2.1 above).
Permission decisions
2.6 Where the Upper Tribunal is entitled to grant the relief sought, the Upper Tribunal judge may, on considering the permission application:
i. Grant the application.
ii. Grant the application on some grounds and refuse it on others.
iii. Adjourn the application for permission to an oral hearing.
iv. Refuse the application.
2.7 Where the application is refused the judge may also:
i. Make any order for costs of the Acknowledgement of Service as is appropriate in all the circumstances.
ii. Curtail the period for renewal of the application from the 9 days permitted under the Upper Tribunal Rules. The Upper Tribunal judge will normally curtail time for renewal to 7 days and may curtail time further where there is a compelling case for expedition. The judge may also state that renewal of the application shall not operate as a bar on removal.
iii. Record that the application is considered to be totally without merit; and if so that any renewal of the application shall not operate as a bar on removal.
2.8 The judge must give brief written reasons for refusing the application or any part of it and may give reasons for the other decisions made if considered appropriate to identify the issues or otherwise assist the preparation for the
next hearing.
Renewed applications
2.9 Where a judge refuses the application on some or all grounds without a hearing, the applicant may apply by notice in writing for that decision to be reconsidered at a hearing. However, where the application has been refused and the decision records that the application is considered to be totally without merit, the applicant may not request the decision to be reconsidered at a hearing.
2.10 Such notice must explain:
i. The grounds on which permission is being renewed;
ii. The basis on which the application is renewed; and
iii. The response the applicant makes to any reasons given by the judge in refusing permission.
2.11 A renewed application for permission will be listed promptly in a permission list at Field House, London. Save with the parties’ consent or in urgent or exceptional cases, at least two days notice of such a hearing will be given to the applicant and any party that has served an AOS.
2.12 Legal representatives based outside London who wish to be heard by video link shall notify the Upper Tribunal in good time, giving details of the proposed arrangements. The Upper Tribunal will have regard to the guidance to be found in CPR 32PD32 (see in particular paragraphs 8-14 of Annex 3).
2.13 A renewed permission application shall be assigned a time estimate of 45 minutes, unless either party has previously applied to the Upper Tribunal explaining:
i. why a longer hearing is necessary;
ii. what steps have or will be taken to keep the extension of time to the minimum necessary; and
iii. giving a realistic revised time estimate.
Decisions on renewed application
2.14 If permission is refused at a hearing, at the conclusion of that hearing the judge shall:
i. deliver a judgment giving the decision and explaining in summary terms why the application or any part of it has been refused;
ii. consider an application made at that hearing for permission to appeal to the Court of Appeal. If no such application is made, the judge must nonetheless consider at the hearing whether to give or refuse permission to appeal. If the judge considers that the circumstances warrant it, the hearing may, however, be adjourned for a short time, in order to give the party concerned more time to make his or her own application for permission to appeal.
iii. arrange for service of a written notice of the decision on the application and of the decision granting or refusing permission;
iv. consider any costs orders to be made arising from the application;
v. consider any application for a stay on removal pending an application made to the Court of Appeal for permission to appeal.
2.15 The Tribunal’s permission is required if an applicant seeks to rely on grounds other than those for which the applicant has been given permission to proceed.
2.16 When a written notice is served refusing permission on all grounds at the oral hearing the decision is a decision of the Upper Tribunal which disposes of proceedings.
Urgent applications
3.1 An application for urgent consideration (an “urgent application”) under 11.1 of the Senior President’s PD, can only be considered by a judge of the Upper Tribunal on the papers where the judicial review proceedings have been issued. Applications for urgent relief made before an application for judicial review has been made should accordingly be made to the Administrative Court.
3.2 An application for a stay on removal or an injunction must be accompanied by statement from the applicant’s legal representative (i) explaining why the application is made urgently: (ii) stating when the decision under challenge came to the claimant’s notice and justifying any delay since that date; and (iii) certifying that there is nothing in the application that the legal representative does not consider to be properly arguable. Such applications must be served on the respondent together with the application for permission.
3.3 An urgent application lodged after 9.30am and before 4.15pm on a working day will be considered by a judge of the Upper Tribunal that day. An urgent application lodged outside these times will be referred to a duty judge of the Queen Bench Division to consider, acting as a judge of the Upper Tribunal.
3.4 Special arrangements have been made for applications lodged at centres outside London for urgent applications made before permission is granted to be considered by judges at those centres before the case is transferred to Field House.
3.5 An urgent application for a stay on removal will be considered on the papers by a judge of the Upper Tribunal, unless the judge adjourns the application for an oral hearing at which both sides can makes submissions.
3.6 An application for an injunction requiring the respondent to return a person who has been previously removed from the United Kingdom may only be made after an oral hearing of which the respondent has notice.
3.7 Where a judge considers an urgent application on the papers, and concludes that further information is needed from the respondent, the judge may telephone the UKBA and seek the further information. A note shall be kept of any information supplied.
3.8 Where an urgent application is granted, the judge shall forthwith draw up an order and give short reasons for it that shall be sent to both parties.
3.9 Where an urgent application is refused, the judge shall give short written reasons for the decision and shall append to those reasons any material information obtained from UKBA.
3.10 An urgent application that is refused on the papers may be renewed orally to a judge of the Upper Tribunal upon application being made promptly to the Tribunal and notice given to the respondent. The Tribunal will list such
application as soon as practicable in all the circumstances of the case.
3.11 A refusal of an oral urgent application is final.
3.12 The provisions of paragraphs 2.14 to 2.18 of this Guidance Note shall, so far as relevant, apply to urgent applications.
Costs
4.1 Where a judge of the Upper Tribunal makes an order that the applicant is to pay a sum to the respondent in respect of the acknowledgment of service or the costs of resisting an urgent application, pursuant to rule 10(3)(a) of the Upper Tribunal Rules and there has been no prior opportunity on the paying party to make representations or to have an inquiry into that party’s means, the order takes effect as a provisional order subject to representations to be made in writing within 10 working days of the order.
4.2 Where no representations have been received within the time specified in the order, the order for costs shall become absolute. In other cases, the representations shall be referred promptly to the judge making the order or such other judge as is available for determination.
Sir Jeremy Sullivan
Senior President of Tribunals
01 November 2013