Isaac Ngatia Kimondo, R (on the application of) v The Secretary of State for the Home Department

Following transfer of an immigration judicial review from the Administrative Court, the Tribunal Procedure (Upper Tribunal) Rules 2008 govern all future procedure. The Civil Procedure Rules no longer apply, although the earlier procedural history may remain relevant, especially to time limits.

In immigration judicial review proceedings, the rule preventing a respondent from participating at the permission stage without the Tribunal’s permission extends to a failure to provide the applicant with a copy of a timely filed acknowledgement of service. That conclusion follows from a purposive construction of rule 29, read with the overriding objective of fair and effective participation. Alternatively, rule 7 permits the Tribunal to impose that restriction where it is just.

The applicant sought judicial review in proceedings transferred from the Administrative Court to the Upper Tribunal. The Administrative Court had refused permission on the papers and had extended time concerning the respondent’s acknowledgement of service.

The respondent had filed an acknowledgement of service but did not provide a copy to the applicant until the day before the renewed oral permission hearing, about a year later. The Tribunal adjourned that hearing to determine two preliminary questions: which procedural rules governed the transferred claim, and whether the respondent could take part at the permission stage despite that failure.

1. Preliminary issues determined in the applicant’s favour. From the date of transfer, judicial review proceedings in the Upper Tribunal are governed by the Tribunal Procedure (Upper Tribunal) Rules 2008. The Civil Procedure Rules governed the claim before transfer but have no effect afterwards. The prior history may nevertheless matter, particularly for time limits.
2. Rule 29 creates reciprocal procedural duties. In immigration judicial review proceedings, the applicant must provide the claim to the respondent, the respondent must lodge an acknowledgement of service with the Tribunal, and rule 29(2A) requires the respondent also to provide a copy to the applicant. These obligations give effect to the basic requirement that each litigant know and be able effectively to answer the opposing case.
3. Rule 29(3) was construed purposively, in light of the overriding objective. Its discretionary restriction on participation at the permission stage is not limited to a complete failure to lodge an acknowledgement of service. It also applies where the acknowledgement has been lodged but not supplied to the applicant as rule 29(2A) requires. A literal contrary construction would produce an anomalous result and undermine fair and effective participation.
4. Alternatively, rule 7(2) empowered the Tribunal, where a respondent had failed to comply with the Rules, to take such action as was just. That included disbarring the respondent from participation in the permission stage. The permission stage and substantive judicial review stage are distinct for this purpose.
5. The respondent was ordered to pay the applicant’s costs of the wasted hearing on 10 October 2014 and associated consequential costs. The renewed oral permission hearing was to be relisted promptly.

• Upper Tribunal (Immigration and Asylum Chamber): Determined preliminary procedural issues after transfer of the judicial review from the Administrative Court.
• Administrative Court: The respondent filed an acknowledgement of service on 14 October 2013. On 31 October 2013, the court refused permission on the papers and extended time concerning the acknowledgement of service.