AM, R (on the application of) v Secretary of State for the Home Department

The Upper Tribunal may use a liberty-to-apply provision to determine whether its existing judicial review order has been complied with. Under Tribunals, Courts and Enforcement Act 2007, section 25(2)(c), it has the relevant powers of the High Court.

Liberty to apply is confined to working out and giving effect to the original order, rather than changing its substance. A declaration that a mandatory order has not been obeyed may fall within that function and may avoid unnecessary fresh proceedings. The overriding objective informs the scope of the jurisdiction. A mandatory order may later be varied or discharged where it has achieved its main purpose and its continuation serves no identifiable end.

Four applicants had obtained judicial review orders requiring the Secretary of State both to arrange their admission to the United Kingdom and to undertake a fresh lawful decision-making process. The orders included liberty to apply.

The Secretary of State made fresh decisions on 2 June 2017. The applicants contended that those decisions repeated the procedurally unfair and defective process already found unlawful. They applied under liberty to apply for a declaration of non-compliance, while the Secretary of State contended that fresh judicial review proceedings were required.

The central issue was whether the Tribunal could use liberty to apply to declare that the mandatory requirement to make fresh lawful decisions had not been satisfied. At hand-down, the Secretary of State proposed to exercise discretion under Article 17(1) of the Dublin Regulation and sought discharge of the earlier mandatory orders.

1. Declaration granted. The Secretary of State had unlawfully failed to comply with paragraph (2) of the Tribunal’s principal orders. The requirement was to begin and complete a fresh lawful decision-making process. That necessarily required a process and decisions which addressed and rectified the unlawful defects previously identified. The further decisions instead relied on procedurally unfair interview material, repeated earlier assessments, failed adequately to assess best interests, and resulted from a paper-based process which did not cure the former defects: [20]–[21], [42].

2. The Tribunal had jurisdiction to determine the application under liberty to apply. Section 25(2)(c) of the Tribunals, Courts and Enforcement Act 2007 gave the Upper Tribunal the same powers as the High Court in matters incidental to its functions, including liberty to apply: [40].

3. Liberty to apply ordinarily permits the court or tribunal to work out, supplement and give effect to its main order, rather than vary its nature or substance. Whether a proposed application falls within that scope is context-sensitive and must give effect to the overriding objective, including expedition, finality, certainty and saving costs: [37]–[39]. A declaration of non-compliance with the mandatory element of the existing orders was an outworking of those orders and promoted those objectives: [42].

4. The different wording of the two mandatory requirements mattered. Extensions validly granted in respect of admission to the United Kingdom meant that there was no breach of that requirement. The unqualified requirement to make fresh lawful decisions had, however, been breached: [41]–[42].

5. The respondent was ordered to pay the applicants’ reasonable costs of the further application, assessed if not agreed and reflecting their publicly funded status: [44].

6. Mandatory orders discharged. After the Secretary of State indicated an intention to make fresh Article 17(1) decisions, the Tribunal treated that notification as an application to vary or discharge the orders. Since the orders had served their purpose and their continuation would serve no identifiable end, both mandatory requirements were discharged: [45]–[47].

• Upper Tribunal (Immigration and Asylum Chamber): In this further application, the Tribunal declared that the Secretary of State had failed to comply with the requirement to make fresh lawful decisions and later discharged the mandatory orders: [2017] UKUT 372 (IAC).
• Upper Tribunal (Immigration and Asylum Chamber): Earlier judicial review judgments and orders had found the expedited decision-making process unlawful and required admission arrangements and fresh lawful decisions. The judgment in AM is cited as [2017] UKUT 262 (IAC).