Citation and commencement

1. These Rules may be cited as the Tribunal Procedure (Upper Tribunal) (Amendment) Rules 2011 and come into force on 17 ^th October 2011.

Amendments to the Tribunal Procedure (Upper Tribunal) Rules 2008

2. The Tribunal Procedure (Upper Tribunal) Rules 2008( 3 ) are amended as follows.

3. In the table of contents—

(a) after the entry for rule 28 insert—

“ 28A. Special provisions for fresh claim proceedings ” ;

(b) after the entry for rule 33 insert —

“ 33A. Amendments and additional grounds resulting in transfer of proceedings to the High Court in England and Wales ” ; and

(c) in the entry for rule 47 for “Review of” substitute “Setting aside”.

4. In rule 1(3) (interpretation) after the definition of “financial services case” insert—

“ “ fresh claim proceedings ” means judicial review proceedings which call into question a decision of the Secretary of State not to treat submissions as an asylum claim or a human rights claim within the meaning of Part 5 of the Nationality, Immigration and Asylum Act 2002 ( 4 ) wholly or partly on the basis that they are not significantly different from material that has previously been considered, and which have been begun in or transferred to the Upper Tribunal pursuant to a direction made by the Lord Chief Justice of England and Wales for the purposes of section 18(6) of the 2007 Act ( 5 ) ; ” .

5. For rule 8(1) (striking out of party’s case) substitute—

“ (1) The proceedings, or the appropriate part of them, will automatically be struck out—

(a) if the appellant or applicant has failed to comply with a direction that stated that failure by the appellant or applicant to comply with the direction would lead to the striking out of the proceedings or part of them; or

(b) when a fee has not been paid upon the grant of permission in fresh claim proceedings as required. ”

6. In rule 11 (representatives)—

(a) at the beginning of paragraph (1) insert “Subject to paragraph (5A),”;

(b) at the beginning of paragraph (5) insert “Subject to paragraph (5B),”; and

(c) after paragraph (5) insert—

“ (5A) In fresh claim proceedings, a party may appoint as a representative only a person authorised under the Legal Services Act 2007 ( 6 ) to undertake the conduct of litigation in the High Court.

(5B) At a hearing of fresh claim proceedings, rights of audience before the Upper Tribunal are restricted to persons authorised to exercise those rights in the High Court under the Legal Services Act 2007. ” .

7. At the beginning of rule 28(8) (applications for permission to bring judicial review proceedings) insert “Except where rule 28A(2)(a) (special provisions for fresh claim proceedings) applies,”.

8. After rule 28 (applications for permission to bring judicial review proceedings) insert—

“ Special provisions for fresh claim proceedings

28A. —(1) The Upper Tribunal must not accept an application for permission to bring fresh claim proceedings unless it is either accompanied by any required fee or the Upper Tribunal accepts an undertaking that the fee will be paid.

(2) Within 9 days of making an application referred to in paragraph (1), an applicant must provide—

(a) a copy of the application and any accompanying documents to each person named in the application as a respondent or an interested party; and

(b) the Upper Tribunal with a written statement of when and how this was done. ”

9. In rule 29 (acknowledgement of service)—

(a) in paragraph (1)—

(i) after “who is sent” insert “or provided with”;

(ii) after “(applications for permission to bring judicial review proceedings)” insert “or rule 28A(2)(a) (special provisions for fresh claim proceedings)”;

(iii) for “send or deliver” substitute “provide”;

(iv) after “the date on which the Upper Tribunal sent” insert “, or in fresh claim proceedings the applicant provided,”;

(b) after paragraph (2) insert—

“ (2A) In fresh claim proceedings, a person who provides an acknowledgement of service under paragraph (1) must also provide a copy to—

(a) the applicant; and

(b) any other person named in the application under rule 28(4)(a) or acknowledgement of service under paragraph (2)(c)

no later than the time specified in paragraph (1). ” ;

(c) in paragraph (3)—

(i) for “sent” substitute “provided with”;

(ii) after “rule 28(8)” insert “or 28A(2)(a)”; and

(iii) after “service” insert “to the Upper Tribunal”.

10. In rule 30(5) (decision on permission or summary dismissal, and reconsideration of permission or summary dismissal at a hearing) after “14 days” insert “, or in fresh claim proceedings 9 days,”.

11. After rule 33 (right to make representations) insert—

“ Amendments and additional grounds resulting in transfer of proceedings to the High Court in England and Wales

33A. —(1) This rule applies only to judicial review proceedings arising under the law of England and Wales.

(2) In relation to such proceedings—

(a) the powers of the Upper Tribunal to permit or require amendments under rule 5(3)(c) extend to amendments which would, once in place, give rise to an obligation or power to transfer the proceedings to the High Court in England and Wales under section 18(3) of the 2007 Act or paragraph (3);

(b) except with the permission of the Upper Tribunal, additional grounds may not be advanced, whether by an applicant or otherwise, if they would give rise to an obligation or power to transfer the proceedings to the High Court in England and Wales under section 18(3) of the 2007 Act or paragraph (3).

(3) Where the High Court in England and Wales has transferred judicial review proceedings to the Upper Tribunal under any power or duty and subsequently the proceedings are amended or any party advances additional grounds—

(a) if the proceedings in their present form could not have been transferred to the Upper Tribunal under the relevant power or duty had they been in that form at the time of the transfer, the Upper Tribunal must transfer the proceedings back to the High Court in England and Wales;

(b) subject to sub-paragraph (a), where the proceedings were transferred to the Upper Tribunal under section 31A(3) of the Senior Courts Act 1981 ( 7 ) (power to transfer judicial review proceedings to the Upper Tribunal), the Upper Tribunal may transfer proceedings back to the High Court in England and Wales if it appears just and convenient to do so. ” .

12. For rule 46(1) (review of decision), substitute—

“ (1) The Upper Tribunal may only undertake a review of a decision pursuant to rule 45(1) (review on an application for permission to appeal). ”

13. In rule 47 (review of a decision in proceedings under the Forfeiture Act 1982 )—

(a) in the heading of that rule, for “Review of” substitute “Setting aside”;

(b) in sub-paragraph (1)(a), for “reviewed” substitute “set aside and re-made under this rule”;

(c) in sub-paragraph (1)(b), for “reviewed” substitute “set aside and re-made under this rule”;

(d) in paragraph (2), for “review the decision” substitute “set aside the decision, either in whole or in part, and re-make it”;

(e) omit sub-paragraph (2)(a);

(f) for paragraphs (3) to (5), substitute—

“ (3) Rule 26(2) to (4), Parts 5 and 6 and this Part apply to a reference under this rule as they apply to a reference under rule 26(1). ”