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

In Upper Tribunal judicial review proceedings, an applicant may amend the statement of facts and grounds without permission only before it is served. After service, amendment requires the Upper Tribunal’s permission. This approach reflects CPR r 17.1 and ensures that the respondent knows the case to be answered.

A case-management order of the Upper Tribunal may be reviewed once under rules 5 and 6 of the Tribunal Procedure (Upper Tribunal) Rules 2008. Although rolling judicial review is generally undesirable, the tribunal retains procedural flexibility to permit an amendment concerning a later decision where justice and the connection between the challenges justify doing so.

The respondent began Upper Tribunal judicial review proceedings challenging removal directions. After those directions were cancelled, the Secretary of State refused and certified his asylum and human rights claims. The respondent then sought to amend his existing grounds to challenge that later decision.

An Upper Tribunal judge refused permission to amend because the proposed grounds constituted a different challenge requiring fresh proceedings. On review, the President held both that permission was unnecessary and, alternatively, that the amendments should be permitted. That judgment was reported as [2016] UKUT 230 (IAC).

The Secretary of State appealed. The principal issues were when permission to amend is required, whether the Upper Tribunal could review the refusal of permission, whether allowing the amendment was legally justified, and whether the review procedure was materially unfair.

1. Appeal allowed on the amendment rule but dismissed as to the grant of permission. The President had made two decisions: first, that no application to amend was required; and secondly, that permission should be granted if an application was required. The first decision was wrong, but the second was affirmed.

2. The statement of facts and grounds in an Upper Tribunal judicial review claim is broadly equivalent to particulars of claim. By analogy with r 17.1 of the Civil Procedure Rules 1998, it may be amended without permission before service. Once it has been served, amendment requires the Upper Tribunal’s permission. Service is the appropriate dividing line because the respondent must know the case to be answered before preparing the detailed response accompanying the acknowledgement of service. The President’s alternative thresholds—lodgement of the acknowledgement of service or first judicial adjudication—allowed excessive uncertainty and had no basis in the applicable rules.

3. The refusal of permission to amend was a case-management order capable of review under rules 5 and 6(5) of the Tribunal Procedure (Upper Tribunal) Rules 2008. There was no workable distinction between a case-management “decision” and a “direction”. Section 10 of the Tribunals, Courts and Enforcement Act 2007 conferred a general review power, and the Tribunal Rules had not excluded case-management orders from it. Under section 10(8), the original decision could be reviewed only once.

4. There is no absolute prohibition against rolling or evolving judicial review. Such proceedings will usually create difficulties, risk confusing the reviewing court’s role with administrative decision-making, and should generally be avoided. Nevertheless, procedural flexibility may be used where required to do justice. Here both the original and amended challenges arose from the same Article 8 claim, and there was no significant delay or prejudice. The President was therefore entitled to permit the amendment.

5. The President should have notified the parties and allowed submissions before conducting the review and issuing general guidance. The procedure breached natural justice. The breach was not material, however, because the jurisdictional objection failed, the incorrect amendment rule had been corrected on appeal, and the decision to allow the amendment was legally open to the President.

6. The proceedings were remitted to the Upper Tribunal for a substantive decision on the Article 8 challenge.

1. Court of Appeal (Civil Division): In [2018] EWCA Civ 2604, held that permission was required because the grounds had already been served, but affirmed the Upper Tribunal President’s alternative decision granting permission to amend. The proceedings were remitted for determination of the Article 8 challenge.
2. Upper Tribunal (Immigration and Asylum Chamber): In [2016] UKUT 230 (IAC), the President reviewed the refusal to amend and held that permission was unnecessary or, alternatively, that the respondent should be permitted to rely on the additional grounds.
3. Upper Tribunal (Immigration and Asylum Chamber): UT Judge Chalkley refused permission for judicial review and permission to amend, holding that the proposed amendment constituted a different challenge requiring fresh proceedings.