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

The Upper Tribunal may make temporary administrative arrangements concerning when it will normally consider immigration judicial-review permission applications, provided that the arrangements do not amend the Tribunal Procedure (Upper Tribunal) Rules 2008 or grant a general dispensation from them.

A late acknowledgement of service is not a reason to disregard it and its summary grounds when they are before the judge considering permission on the papers. The 21-day period in rule 29(1) informs the progress of the procedure; it is not itself a sanction. The Tribunal should, however, require procedural compliance and end exceptional arrangements once their temporary justification no longer persists.

The substantive judicial-review claims of KA and Mr Awofadeju were severed. The remaining proceedings concerned whether the Upper Tribunal should retain the arrangements made in R (on the application of Kumar) v Secretary of State for the Home Department [2014] UKUT 00104 (IAC).

Those arrangements meant that non-urgent immigration judicial-review permission applications would generally not be considered on the papers until six weeks after filing. The Secretary of State was expected to seek to meet the 21-day period for an acknowledgement of service, but did not normally have to seek an extension unless unable to file within six weeks.

The applicants contended that the arrangements were ultra vires and should end. The Tribunal considered their legal status, the Secretary of State's current compliance capacity, and the appropriate contents of summary grounds of defence.

1. The Kumar arrangements were ended prospectively. They would not apply to applications for permission to bring judicial-review proceedings filed after 1 January 2019. A phased replacement timetable would be unnecessarily difficult for practitioners, judges and litigants in person. The intervening arrangements in Kumar could continue without alteration, including the fee-free written request for earlier consideration.

2. The Tribunal had power to make the temporary arrangements. They did not purport to amend the Tribunal Procedure (Upper Tribunal) Rules 2008, substitute 42 days for the 21-day period in rule 29(1), or grant general relief from sanction. Rule 29(1) determines the risk that permission will be decided without the respondent's position; that procedural consequence is not a sanction.

3. Rule 29(3) contains the relevant, limited sanction for a person who has not filed an acknowledgement of service. It does not expressly apply where an acknowledgement has been filed late. In any event, the arrangements did not relieve a respondent from the need for the Tribunal's permission to participate where no acknowledgement had been filed.

4. Where a late acknowledgement and summary grounds are before the judge considering permission on the papers, their lateness cannot itself justify ignoring them. Considering them may prevent an unarguable claim from receiving permission and exposing an applicant, particularly an unrepresented applicant, to avoidable costs.

5. Procedural rigour remains important in public-law litigation. The ending date gave the Secretary of State reasonable time to achieve compliance with the 21-day requirement in most cases and to seek individual extensions under rule 5 where necessary.

6. The Tribunal gave non-prescriptive guidance on summary grounds. They should contain a useful chronology, identify an unclear complaint where appropriate, and directly explain why the challenge is said to be unarguable. They should not recite settled law unnecessarily. In challenges under the Immigration Rules, they should set out the applicable version of the relevant rule and the succinct reasons why its requirements are said not to be met.

Not stated in the judgment. The Upper Tribunal severed the substantive judicial-review proceedings from these proceedings, which concerned the continuation of the Kumar arrangements.