Rajeev Kumar, R (on the application of) v The Secretary of State for the Home Department

In immigration judicial review proceedings, the Tribunal may ordinarily defer its initial paper consideration until six weeks after service of the claim on the Secretary of State. An acknowledgement of service filed within that period will routinely be considered.

Earlier consideration remains available for justified urgency or agreed expedition. A request to extend time beyond six weeks must give case-specific compelling reasons and a firm filing date. The absence of an acknowledgement of service does not itself justify permission. The Tribunal must decide arguability on the available material and may direct a response where material facts require confirmation.

Late procedural compliance does not of itself determine costs. Costs consequences arise where the default has caused an unnecessary renewal hearing or an unwarranted grant of permission.

The applicants brought immigration judicial review applications in the Upper Tribunal. The Secretary of State had not filed acknowledgements of service within the 21-day period prescribed by the Tribunal Procedure (Upper Tribunal) Rules 2008.

The cases were selected to determine the Chamber’s general response to a continuing systemic inability to file acknowledgements and summary grounds in time. The Tribunal considered the High Court guidance in R (on the application of Singh and Others) v Secretary of State for the Home Department [2013] EWHC 2873 (Admin), the purpose of summary grounds, case-management powers, urgent applications, and costs consequences. No individual issue in either applicant’s claim required determination; each claim was to be considered subsequently on the papers.

1. The Tribunal promulgated temporary general arrangements for immigration judicial reviews from 6 March 2014. Subject to stated exceptions, it would not undertake initial paper consideration before six weeks from service of the claim on the Secretary of State. An acknowledgement of service and summary grounds filed within that period would routinely be considered.

2. The 21-day requirement in rule 29(1) remained in force. However, the Secretary of State need not make a routine first extension application merely because she could not meet that period. If she could not file by the end of six weeks, she had to apply on 72 hours’ notice and meet the requirements drawn from Singh [2013] EWHC 2873 (Admin): compelling reasons specific to the case and a firm date for filing. Generic lack of instructions would not ordinarily suffice.

3. Earlier consideration could be sought by a properly explained urgent request, or by the Secretary of State’s request for expedition. An application seeking a stay on removal or other interim injunctive relief had to use Form T483 and comply with the relevant Practice Directions. By the end of six weeks, the Secretary of State was expected to provide any pre-action protocol response or confirm that none had been sent.

4. Permission could not be granted as a sanction for the absence of an acknowledgement of service. The judge had to assess arguability on the materials available, including any pre-action response, and apply the Tribunal’s specialist knowledge. A specific direction to file an acknowledgement and summary grounds would normally be appropriate only where a potentially material factual matter required confirmation or denial.

5. Late filing did not automatically deprive the Secretary of State of recoverable costs. But she would ordinarily be vulnerable to costs where her default caused an unnecessary oral renewal hearing or caused permission to be granted when it would otherwise have been refused.

This was not an appeal. The Upper Tribunal exercised its original judicial review jurisdiction and issued general procedural arrangements. The individual applications of Mr Kumar and Mr Yeboah were left for later paper consideration.