JS & Ors, R (on the application of) v Secretary of State for the Home Department

A child does not automatically require a litigation friend in immigration judicial review proceedings. The Upper Tribunal should appoint one only where the child cannot conduct, or give instructions for, the proceedings. Capacity is child-specific and decision-specific.

As general guidance, a child aged 16 or 17 is presumed able to conduct proceedings unless vulnerability, special educational needs, or another relevant difficulty indicates otherwise. For children aged 12 to 15, the need is assessed case by case. Children under 12 will normally require a litigation friend. The Tribunal may draw on, but cannot simply adopt, the Civil Procedure Rules 2018.

Four linked immigration judicial review claims were brought by children aged between three and 17. Their circumstances differed: some were unrepresented, one had legal representatives, and one was an unaccompanied child who was said to have capacity.

The absence of express provision for litigation friends in the Upper Tribunal rules created uncertainty about when one was required, who could act, and the procedural consequences if proceedings had begun without one. The Secretary of State and the Lord Chancellor sought guidance. The central issue was the Upper Tribunal’s approach to litigation friends for child applicants in immigration judicial review proceedings, and its relevance to statutory appeals.

1. Guidance was given and consequential directions were made. The Upper Tribunal has power to appoint a litigation friend. In appropriate circumstances, failure to do so would breach common-law fairness and access to justice. The power and approach apply in immigration judicial review proceedings and, generally, in statutory appeals in the First-tier and Upper Tribunals: [2017] EWCA Civ 1123.

2. The Tribunal could not judicially adopt the litigation-friend regime in the Civil Procedure Rules 2018. Rule-making was for the Tribunal Procedure Committee and the Lord Chancellor. Nevertheless, the CPR supplied useful general principles, provided that they were adapted to the Tribunal’s distinct procedure and overriding objective.

3. A litigation friend is necessary only where the child lacks the ability to conduct the proceedings or give relevant instructions. The inquiry is fact-specific. It asks whether, with appropriate explanation and assistance, the child can understand the matters requiring a decision in the litigation. Competence is also decision-specific and child-specific. It includes sufficient understanding and intelligence to grasp the nature and implications of the decision, weigh the information, decide, and communicate the decision.

4. The Tribunal set age-related guidance. Applicants aged 16 or 17 are generally presumed capable unless vulnerability, special educational needs, or another difficulty indicates otherwise. For those aged 12 to 15, relevant non-exhaustive matters include representation, an assisting parent, local-authority involvement, and vulnerability. Legal representatives in that group should address capacity and the need for a litigation friend in writing. Children under 12 will normally need one.

5. A litigation friend must act competently, diligently, and in the child’s best interests, without an adverse interest. Consent to act is necessary. Normally only one person should be appointed. A parent will often be suitable, but need not be. An undertaking as to costs is not normally a precondition, although it may be required where appropriate. Proceedings begun without a required litigation friend will very rarely be declared invalid; the Tribunal should ordinarily regularise matters through directions.

6. In judicial review, an applicant seeking appointment should identify that request in Box 7 of the claim form. The Secretary of State must still file a full Acknowledgment of Service, whether or not a litigation friend has been appointed, and should raise the issue in that document where necessary.

This was a first-instance determination of four linked judicial review applications. The Tribunal issued general procedural guidance and made case-specific directions concerning the need for litigation friends and disposal of the individual claims.