Emiljano Spahiu & Anor, R (on the application of) v The Secretary of State for the Home Department

An applicant may lodge amended judicial review grounds without the Tribunal’s permission only before the respondent lodges an Acknowledgement of Service. Thereafter, amendment requires a formal written application, ordinarily made on notice and with the prescribed fee.

The Tribunal’s discretion is normally exercised in favour of an amendment that discloses an arguable ground. It must nevertheless give effect to fairness, reasonableness, the overriding objective and the public law character of the proceedings. Delay, prejudice, costs, abuse of process and attempts at rolling review may justify refusal or other case-management directions.

Two judicial review applications were selected to give procedural guidance on applications to amend judicial review grounds in the Upper Tribunal.

In Spahiu, permission to apply for judicial review and permission to amend had initially been refused. The proposed additional grounds had, however, been lodged before the first judicial determination. In Salehi, permission had been granted and the applicant sought to add a new challenge to a proposed transfer to Hungary under the Dublin Regulation. Comparable Administrative Court challenges concerning returns to Hungary were pending.

The central issue was the proper procedure and principles governing amendment of judicial review grounds.

1. Spahiu: the applicant was permitted to rely on the additional grounds at the oral renewal hearing. They had been added before the first judicial adjudication and therefore effectively formed part of the claim as lodged. There was no material delay or prejudice, and no further fee was payable.

2. Salehi: adjudication of the amendment application was deferred pending the comparable Administrative Court decisions concerning returns to Hungary.

3. The Tribunal has a discretionary power under Rule 5(3)(c) and Rule 32 of the Tribunal Procedure (Upper Tribunal) Rules 2014 to permit amendment. The principal question will usually be whether the proposed ground is arguable. An arguable amendment will normally be permitted, but the discretion must be exercised fairly and reasonably, with effect to the overriding objective and all material circumstances.

4. The Tribunal must consider delay, prejudice, costs, abuse of process and whether the proposed pleading is scandalous, frivolous or vexatious. It must also recognise the public law setting, including the wider importance of a recurring issue of law.

5. After lodgement of an Acknowledgement of Service, amendment ordinarily requires a written, on-notice application and the applicable fee. Exceptions may arise where an order granting permission requires amendment, or where the Tribunal permits amendment during a hearing.

6. An amendment to grounds must be distinguished from an attempt to amend the respondent’s decision under challenge. The latter may improperly create a rolling review. Where further representations will foreseeably produce a new decision, the judicial review will normally be refused or dismissed as moot, for failure to exhaust an alternative remedy, or to prevent rolling review.

• Upper Tribunal (Immigration and Asylum Chamber): In Spahiu, an earlier judicial decision had refused permission to apply for judicial review and refused amendment. The President permitted reliance on the additional grounds. In Salehi, permission to apply for judicial review had been granted; the proposed new ground was deferred pending related Administrative Court decisions.