Spahiu, R (on the application of) v The Secretary of State for the Home Department [2018] EWCA Civ 2604

Case No C2/2016/3440[2018] EWCA Civ 2604
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(Immigration and Asylum Chamber)
UTJ McCloskey
JR/9227/2015
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/11/2018
Before
LORD JUSTICE PATTENLORD JUSTICE HAMBLENLORD JUSTICE COULSON
Between
The Secretary of State for the Home DepartmentAppellantThe Queen on the application of Emiljano SpahiuRespondent
Mr Zane Malik (instructed by Government Legal Department) for AppellantMr Hugh Southey QC & Mr Barnabas Lams (instructed by Oaks Solicitors) for RespondentHearing Hearing date: Tuesday 30th October 2018
JudgmentLord Justice Coulson :Introduction
[1]This appeal was originally concerned with whether amendments to the statement of facts and grounds in an application for judicial review in the Upper Tribunal (“UT”), made after the grounds had been served and after the respondent has served an Acknowledgement of Service (“AoS”), require the permission of the UT. In a decision dated 18 April 2016, McCloskey J, the President, decided that Mr Spahiu was entitled to amend his grounds so as to challenge a decision made by the appellant after the proceedings had commenced, and that permission was not required for the amendments because they had been added “prior to the first judicial adjudication”. During the appeal hearing, however, a number of other issues became apparent, including a potentially important point about whether, after refusal by the UT on paper of an application to amend the statement of facts and grounds, an applicant is entitled to seek a review of that decision.[2]The hearing of this appeal took place against a backdrop of increasing concern about the need for appropriate procedural rigour in judicial review cases, expressed in a trio of recent authorities, namely: R (Talpada) v SSHD [2018] EWCA Civ 841, from paragraph 55 onwards; Hickey v The Secretary of State for Work and Pensions [2018] EWCA Civ 851, from paragraph 69 onwards; and Browne v The Parole Board of England & Wales [2018] EWCA Civ 2024. This case is another reminder that, even in proceedings where unnecessary formality is to be avoided, some formality (and the certainty which it brings) is required.

The Factual Background

[3]Mr Spahiu is a citizen of Albania, born on 5 May 1983. He entered the UK illegally around 2012. He was detained in July 2015, and was served with notices concerning his illegal entry and liability to detention and removal. On 23 July 2015 he was issued with directions for his removal to Albania, set for 1 August 2015.[4]Also on 23 July, Mr Spahiu made Article 8 and asylum claims. He commenced these judicial review proceedings in the UT on 29 July 2015, seeking to challenge the removal directions. In consequence of this challenge, the removal directions were cancelled.[5]On 19 August 2015, the Secretary of State (“the appellant”) made an offer to Mr Spahiu that the proceedings be withdrawn by consent (because the removal directions had been cancelled) and that his asylum and human rights claims would be considered and determined in 3 months. On the same day the appellant filed an AoS with the UT, which dealt with the reasons why the appellant said that the UT should refuse permission for judicial review.[6]The appellant’s offer was rejected and instead, on 28 August 2015, Mr Spahiu filed a reply to the summary grounds of defence. On 10 September 2015 the appellant wrote to the UT inviting them to refuse permission to apply for judicial review, on the basis that the claim had become academic.[7]On 17 September 2015, the appellant considered and determined Mr Spahiu’s asylum and human rights claim. The claims were refused and were certified as “clearly unfounded” under Section 94 of the Nationality, Immigration and Asylum Act 2002. One of the effects of the certificate is that an appeal against the decision could be brought to the First-Tier Tribunal (“FTT”) only from abroad.[8]On 6 October 2015, Mr Spahiu filed an application notice seeking permission to amend the grounds of judicial review. The amendments sought to challenge the decision of 17 September, contending that that decision was unlawful and that the appellant’s approach to Article 8 was legally flawed.[9]UT Judge Chalkley considered the application for permission and the application to amend together on the papers. In a decision dated 9 October 2015, he refused the application for permission to apply for judicial review, noting that the challenge to the removal directions was academic as those directions were duly cancelled by the appellant. In addition, he refused permission to amend the grounds of judicial review, noting that they represented “an entirely different challenge” which “will have to be the subject of a fresh application for judicial review”.[10]Mr Spahiu made an application to the UT seeking a review of both decisions. The status of the proposed amendments was obviously critical, because it was only the challenge made by way of the amendments that now served any purpose. A hearing took place in front of UT Judge Rintoul on 16 December 2015. A variety of arguments were raised, including a point taken by the appellant to the effect that it was not open to the UT to review the decision to refuse permission to amend, pursuant to the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the Tribunal Rules”). It was said that this point was the subject of consideration in another case and eventually, the judge adjourned the applications until after the other case had been decided. He reserved this case to himself and said that he would send out case management directions in due course.[11]Thereafter, nothing more was heard until 18 March 2016 when, without warning, the parties received a written judgment (“the March judgment”) from the President of the UT. He decided that UT Judge Chalkley had been wrong to refuse permission to amend; indeed, he suggested that permission was not even required. The relevant parts of his reasoning were as follows:
“5. There is a further general rule, namely that following the lodgement of a judicial review claim form, an applicant may, without permission, amend the claim at any time up to the judicial adjudication of whether permission to apply for judicial review should be granted. Amendments of this kind will be treated by the Tribunal in the same way as the original pleading. The two merge. No further fee is payable in this situation… 12. [In the respondent’s case] the initial judicial decision embodied a refusal of permission to apply for judicial review and a refusal to permit amendment of the grounds. As the analysis in [5] above makes clear, this latter aspect of the judge’s order was superfluous. The Applicant has now made an application for an oral renewal hearing and seeks to rely on the proposed amended grounds. Giving effect to the general rule noted in [5] above, I consider that the applicant should be permitted to rely on the additional grounds. They effective form part of the application as lodged since they were added prior to the first judicial adjudication. Furthermore, no significant issue of delay or prejudice is identifiable. Finally, no further fee is payable.”
[12]Exactly a month later, on 18 April 2016, again without warning, the parties received a second judgment (“the April judgment”) from the President. This was in similar terms to the March judgment but contained some crucial differences. It was not explained what had prompted the changes. It is the April judgment which is reported at [2016] UKUT 230 (IAC). It has a Headnote, apparently prepared by the President, in these terms:
“(1) The amendment of a judicial review claim form preceding the lodgement of the Acknowledgement of Service does not require the permission of the Tribunal. Such permission is required in all other instances.”
[13]The relevant paragraphs now read:
“5. From the moment of initial lodgement, the tribunal exercises full control over the content of the claim form and grounds. However, it is open to an applicant to subsequently lodge a claim form containing amended grounds, serving same on the respondent, without making a formal application for permission to amend, provided that this precedes the lodgement of the respondent's Acknowledgement of Service ("AOS"). From this date, the only mechanism for amending the grounds is a formal application to amend the claim form or grounds which must be made formally in writing and paying the appropriate fee. By virtue of the Upper Tribunal (Immigration and Asylum Chamber) (Judicial Review) (England and Wales) Fees Order 2011, the prescribed fee (formerly £80.00) is £255.00, with effect from 21 March 2016: see the Civil Proceedings, Family Proceedings and Upper Tribunal Fees (Amendment) Order 2016. This is the fee prescribed for applications on notice. This is the appropriate fee because, save as outlined in [6] below, every application to amend the grounds in a claim form must be made on notice to the respondent. … 12. In the first of these two cases [Spahiu] the initial judicial decision embodied a refusal of permission to apply for judicial review and a refusal to permit amendment of the grounds. As the analysis in [5] above makes clear, this latter aspect of the Judge's order was superfluous. The Applicant has now made an application for an oral renewal hearing and seeks to rely on the proposed amended grounds. Giving effect to the general rule noted in [5] above, I consider that the Applicant should be permitted to rely on the additional grounds. They effectively formed part of the application as lodged since they were added prior to the first judicial adjudication. Furthermore, no significant issue of delay or prejudice is identifiable. Finally, no further fee is payable.”
[14]One important change in paragraph 5 is that, instead of the earlier formulation of the test (that permission is unnecessary “at any time up to the judicial adjudication of whether permission to apply for judicial review should be granted”), the President said instead that amendments without permission could only be made prior to “the lodgement of the respondent’s Acknowledgement of Service”. However, this potentially important difference is not reflected in paragraph 12, which still applies the rubric “prior to the first judicial adjudication”. That is a point to which I revert in paragraphs 31-33 below.[15]The appellant complained that the decisions were wrong and had been made unfairly without any representations from either side. Following oral argument, by an order dated 26 July 2016, Judge Ockelton, the then Vice President of the Upper Tribunal, granted permission to appeal.[16]Although Mr Malik put his grounds of appeal in one sequence, it is convenient for the court to take the points that arise on appeal in a slightly different order. In my view, the issues which this court needs to decide are as follows: a) Issue 1: What is the correct characterisation of the decision of the President? Was it a decision that the respondent did not need to make an application to amend (because the amendments were provided before the AoS or alternatively before the first judicial engagement), or was it a decision that, although an application was necessary, permission to amend would be granted? b) Issue 2: To the extent that the decision was one that no application to amend was necessary, was it correct? What is the correct approach to amendments to the statement of grounds in a judicial review/UT claim: at what stage does it become necessary to obtain permission for such amendments? c) Issue 3: To the extent that the decision was one to allow the amendments, was that decision valid? This raises 3 sub-issues, namely: i) Whether the President had the jurisdiction to review the decision of UT Judge Chalkley; ii) Whether the President was entitled to conclude, on the merits, that permission to amend should be granted; iii) Whether his approach was procedurally unfair and amounted to a material breach of natural justice.

Issue 1: What is the Correct Characterisation of the President’s Decision?

[17]Mr Malik submitted that the decision was a ruling that an amendment application was unnecessary because the amendments had been provided prior to the AoS (or alternatively, prior to the first judicial engagement). In consequence, he said that the President applied the wrong test and/or if he had applied his own test he would have come to a different conclusion on the facts. Mr Southey QC, on the other hand, submitted that the decision should be characterised as one by which the President allowed Mr Spahiu’s application to amend, which he said was a decision which the President was entitled to make and cannot be said to be wrong.[18]At first blush, the President’s decision appears to say that no amendment application was necessary in this case because the amendment preceded the lodgement of the AoS, or the first judicial engagement. That is the thrust of the first paragraph of the President’s headnote; the second sentence of paragraph 5; and the fact that in paragraph 12 he said that, for the reasons set out in paragraph 5, UT Judge Chalkley’s order refusing permission to amend was “superfluous”.[19]But there are other parts of these same paragraphs which suggest that the President was considering and deciding afresh the application for permission to appeal. That impression is supported by the first sentence of paragraph 5 and from the passage in paragraph 12 where he says that “the applicant should be permitted to rely on the additional grounds…furthermore, no significant issue of delay or prejudices are identifiable. Finally, no further fee is payable”.[20]In the end, I have concluded that, although the wording is opaque, the President was making two separate decisions. First, he was saying that, in his view, an amendment application was unnecessary because of the early stage at which the amendments were provided. But secondly, he was going on to say that, if he was wrong about that (so that an amendment application was required), that application should be granted. It is therefore necessary for this court to deal with the appeal on the basis that the President reached two separate decisions. That has the further advantage of allowing this court to resolve the argument about when in principle permission to amend is required (and when it is not), and to address the appellant’s overriding concern about the President’s decision, which is the breadth and width of Headnote 1. Mr Malik indicated that it was this, above all else, to which the appellant objected. Issue 2: When Can An Amendment Be Made to JR Grounds Without Permission? a). The CPR and Other Procedural Rules[21]In my view, the starting point is the CPR. Part 17.1 is in the following terms:
“Amendments to statements of case 17.1 (1) A party may amend his statement of case at any time before it has been served on any other party. (2) If his statement of case has been served, a party may amend it only – (a) with the written consent of all the other parties; or (b) with the permission of the court. (3) If a statement of case has been served, an application to amend it by removing, adding or substituting a party must be made in accordance with rule 19.4. (Part 22 requires amendments to a statement of case to be verified by a statement of truth unless the court orders otherwise)”
[22]Rule 17.3 deals with amendments to statements of case with the permission of the court. There is extensive guidance as to the correct approach to amendments where permission is required, much of it summarised in the relevant section of the White Book 2018 at paragraphs 17.3.1 to 17.3.8.[23]Although the Tribunal Rules deal with the UT’s case management powers at Rule 5, there is nothing that specifically addresses when amendments can be made without permission. By contrast, one reading of the FTT Immigration and Asylum Chamber Rules 2014 suggests at Rule 19(7) that every amendment in the FTT requires permission, no matter how early in the process the amendment is formulated. b). What is the Test in Judicial Review Proceedings in the UT?[24]In judicial review proceedings in the UT, the claim starts with the service of the statement of facts and grounds (Tribunal Rule 28(4)(g)). That is then served (in an Immigration and Asylum case, in accordance with Tribunal Rule 28A(2)) and the respondent has a set period in which to serve an AoS (Tribunal Rule 29(1)). In judicial review claims, the AoS tends to include a detailed response to the statement of facts and grounds. Thereafter the application for permission will be considered by a judge, often on the papers.[25]The statement of facts and grounds is therefore broadly equivalent to the particulars of claim, because it is the document which sets out the detailed basis for the applicant’s challenge. By analogy with CPR r.17.1, an applicant seeking permission to bring judicial review proceedings in the UT would be entitled to amend his statement of facts and grounds without permission, provided that the amendments were made before that statement was served on the respondent. Conversely, once the statement of facts and grounds had been served on the respondent, r.17.1 would indicate that any amendments thereto would require the permission of the UT.[26]Is there any reason why this straightforward approach should not be applied to judicial review proceedings in the UT? In my view, the answer is No. Given the well-established CPR regime, I would have expected that, if a different approach was going to be taken by the Tribunal Rules, it would have been clearly spelt out. But no part of the Tribunal Rules says anything about amendments which do not require permission. On the face of it, therefore, I would conclude that the same procedure as set out in r.17.1 applies, at least by analogy, and that amendments to the statement of facts and grounds can be made without permission up to the date of their service, but not thereafter. In my view, there is no legal or practical basis for identifying a separate or different rule for judicial review proceedings in the UT.[27]I also consider that to be a sensible outcome. If the respondent has not yet received the statement of facts and grounds, he or she does not know what it says so, at least in the vast majority of cases, there is no harm in allowing the applicant a wide latitude to amend the statement before it is received by the respondent, the better to reflect the applicant’s real challenge. But once it has been received, and the respondent starts work on preparing his or her defence, it would create confusion, lead to delay and waste costs if an applicant was entitled then to serve further versions of the statement of facts and grounds as and when new thoughts (or new events) occurred.[28]On behalf of the respondent, Mr Southey QC was unable to point to any authority for the proposition that the approach in r.17.1 should not apply to the statement of facts and grounds in a judicial review claim in the UT. He was also unable to identify any principle of law which prevented such an approach. The only place where his skeleton argument touched on this point is at paragraph 13 where he submitted:
“The respondent submits that it is not surprising that there is no rule requiring a claimant to obtain permission to amend grounds before permission is granted. That is because the requirement to obtain permission to apply for judicial review from the court will prevent unmeritorious claims being made. That suggests that an applicant should be able to apply to amend their claim before a decision on permission without formality. That interpretation of the rules is consistent with the overriding objective as it avoids unnecessary formality. It does not prejudice Respondents as they will be able to object to permission.”
[29]In my view, that passage could not be described as a principled explanation of how and why the approach in r.17.1 should not apply to the statement of facts and grounds, in just the same way as it applies to particulars of claim. Whilst unnecessary formality is to be avoided in public law claims, it is not unnecessary (but instead a fundamental right) that the respondent understands the claim that it has to meet when it provides its detailed response with the AoS. That can only happen if the grounds of challenge have been ‘frozen’ at the time of the service of proceedings, subject always to amendments which receive the subsequent permission of the court. c). The President’s Test(s)[30]I note that the President advanced two different tests in the two different judgments. In the March judgment, he said that amendments without permission were permitted at any time prior to “the judicial adjudication of whether permission to apply for judicial review should be granted”. In the April judgment, he said that there was no need for a formal application for permission to amend “provided that this [the amendment] proceeds the lodgement of the respondent’s Acknowledgement of Service”. He set out no basis for either of these tests: he made no reference at all, in either judgment, to the CPR, or to the Tribunal Rules, or to any authority. On one view, his decision was contrary to his own judgment in SN v SSHD [2015] UKUT 00227 (IAC) which suggests at [35] that permission to amend “must be sought proactively and timeously in every case”.[31]In addition, it is not easy to say which test the President actually applied. Although he appeared to change his formulation of the test between the March and April judgments, it would appear that he continued to apply the March version when dealing with the validity of the application to amend in the April judgment. This can be seen in two ways.[32]First, although he said at paragraph 5 of the April judgment that a formal application was not required provided that the amendment proceeded the lodgement of the AoS, he failed to apply that test to the facts of this case. Mr Spahiu’s proposed amendments were provided after the AoS had been filed (see paragraph 5 above), yet the President still found that permission was not required. Thus, on a proper application of the President’s restated test, the conclusion ought to have been that permission to amend was required, because the AoS had been filed before the amendments had been formulated.[33]Secondly, paragraph 12 of the April judgment (set out at paragraph 13 above) said that the respondent should be permitted to rely on additional grounds because “they were added prior to the first judicial adjudication”. So they were: but that is not the test which the President himself had set out at paragraph 5 of the same judgment that would appear to be a reference to the test from the March judgment, which had apparently been superseded. It is noteworthy that it is the first and most open-ended version of the test which Mr Southey QC sought to support at paragraph 13 of his skeleton argument.[34]In my view, neither of the tests advanced by the President was correct. There is no stated basis for either of them. Although the test advanced in the April judgment was slightly more rigorous than the one in the March judgment, they both suffer from the same fundamental flaw: they give an applicant too much leeway to create confusion, by chopping and changing the basis of the judicial review claim, which would cause the respondent to run up unnecessary costs. d) Issue 2: Summary[35]For the reasons set out above, to the extent that the President concluded that no amendment application was necessary in this case, I consider that he was wrong because he applied the wrong test(s). In judicial review proceedings, the statement of facts and grounds can be amended without permission prior to their service, but at any time thereafter, permission to amend is required. On that basis, therefore, Mr Spahiu required permission to amend. Issue 3: To The Extent That The President Granted Permission to Amend, Was That A Valid Decision?[36]To the extent that the President granted permission to amend, the appellant submits that his decision was invalid. There are three elements to that: a) Did the President have the jurisdiction to review UT Judge Chalkley’s refusal of the amendment application? b) If so, was he entitled to take a view of the merits of the application so as to grant permission to amend? c) If so, should the court set aside the President’s order because his approach was procedurally unfair and amounted to a material breach of natural justice? I deal with each of those issues in turn below.

Issue 3a) Is There A Right of Review?

[37]Mr Southey QC argued, principally by reference to Rules 5 and 6 of the Tribunal Rules, that there is a power to review any case management decision of the UT, even those which are properly characterised as a case management direction. Mr Malik said that the decision made by UT Judge Chalkley refusing permission to amend was a final decision, not a direction, which was not capable of being reviewed.[38]The power of the UT to review its own decisions is set out in Section 10 of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”) as follows:
“10 Review of decision of Upper Tribunal (1) The Upper Tribunal may review a decision made by it on a matter in a case, other than a decision that is an excluded decision for the purposes of section 13(1) (but see subsection (7)). (2) The Upper Tribunal's power under subsection (1) in relation to a decision is exercisable– (a) of its own initiative, or (b) on application by a person who for the purposes of section 13(2) has a right of appeal in respect of the decision. (3) Tribunal Procedure Rules may– (a) provide that the Upper Tribunal may not under subsection (1) review (whether of its own initiative or on application under subsection (2)(b)) a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules. … (8) A decision of the Upper Tribunal may not be reviewed under subsection (1) more than once, and once the Upper Tribunal has decided that an earlier decision should not be reviewed under subsection (1) it may not then decide to review that earlier decision under that subsection.”
This case is not concerned with excluded decisions under s.13.[39]It is necessary to set out some of the Tribunal Rules. Those dealing with case management are as follows:
“5.— Case management powers (1) Subject to the provisions of the 2007 Act and any other enactment, the Upper Tribunal may regulate its own procedure. (2) The Upper Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction. (3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Upper Tribunal may— (a) extend or shorten the time for complying with any rule, practice direction or direction; (b) consolidate or hear together two or more sets of proceedings or parts of proceedings raising common issues, or treat a case as a lead case; (c) permit or require a party to amend a document; (d) permit or require a party or another person to provide documents, information, evidence or submissions to the Upper Tribunal or a party; (e) deal with an issue in the proceedings as a preliminary issue; (f) hold a hearing to consider any matter, including a case management issue; (g) decide the form of any hearing; (h) adjourn or postpone a hearing; (i) require a party to produce a bundle for a hearing; (j) stay (or, in Scotland, sist) proceedings; (k) transfer proceedings to another court or tribunal if that other court or tribunal has jurisdiction in relation to the proceedings and— (i) because of a change of circumstances since the proceedings were started, the Upper Tribunal no longer has jurisdiction in relation to the proceedings; or (ii) the Upper Tribunal considers that the other court or tribunal is a more appropriate forum for the determination of the case; (l) suspend the effect of its own decision pending an appeal or review of that decision; (m) in an appeal, or an application for permission to appeal, against the decision of another tribunal, suspend the effect of that decision pending the determination of the application for permission to appeal, and any appeal; (n) require any person, body or other tribunal whose decision is the subject of proceedings before the Upper Tribunal to provide reasons for the decision, or other information or documents in relation to the decision or any proceedings before that person, body or tribunal. 6.— Procedure for applying for and giving directions (1) The Upper Tribunal may give a direction on the application of one or more of the parties or on its own initiative. (2) An application for a direction may be made— (a) by sending or delivering a written application to the Upper Tribunal; or (b) orally during the course of a hearing. (3) An application for a direction must include the reason for making that application. (4) Unless the Upper Tribunal considers that there is good reason not to do so, the Upper Tribunal must send written notice of any direction to every party and to any other person affected by the direction. (5) If a party or any other person sent notice of the direction under paragraph (4) wishes to challenge a direction which the Upper Tribunal has given, they may do so by applying for another direction which amends, suspends or sets aside the first direction.”
[40]Under the heading ‘Part 4 Judicial review proceedings in the Upper Tribunal’, there are rules concerned with the grant and refusal of applications for permission to bring judicial review proceedings. Certain of them were referred to by Mr Malik, including:
“30.— Decision on permission or summary dismissal, and reconsideration of permission or summary dismissal at a hearing … (3) Paragraph (4) applies where the Upper Tribunal, without a hearing— (a) determines an application for permission to bring judicial review proceedings by— (i) refusing permission or refusing to admit the late application, or (ii) giving permission on limited grounds or subject to conditions; or (b) in proceedings transferred from the Court of Session, summarily dismisses part or all of the proceedings, or imposes any limitations or conditions on the continuation of such proceedings. (4) [Subject to paragraph (4A), in] the circumstances specified in paragraph (3) the applicant may apply for the decision to be reconsidered at a hearing.”
[41]Part 7 of the Tribunal Rules is called ‘Correcting, setting aside, reviewing and appealing decisions of the Upper Tribunal’. That Part contains a number of lengthy rules: Rule 42, which is concerned with “clerical mistakes and accidental slips or omissions”; Rule 43, which is concerned with “setting aside a decision which disposes of proceedings”; Rule 44, which is concerned with applications for permission to appeal; and Rule 45, which is concerned with the UT’s consideration of applications for permission to appeal. Rule 46 is concerned with a review of a decision pursuant to Rule 45.[42]Mr Malik also drew our attention to two authorities. The first, Patel v The Secretary of State for the Home Department [2015] EWCA Civ 1175; [2016] INLR 289, was concerned with whether the UT had the power to reverse a decision, given orally, to grant permission to appeal to itself. The Court of Appeal concluded that the first decision (to grant permission) was an excluded decision within the meaning of Section 13 of the Act so it could not be the subject of a review. As a result, the UT judge had no jurisdiction to make the second ruling (the reversal).[43]Patel was considered more recently by the UT in Fawad Jan v The Secretary of State for the Home Department [2016] UKUT 336 (IAC). That was another case about permission to appeal and what constituted an excluded decision. The UT concluded:
“25. Sir Richard Aikens' treatment of that issue is perfectly clear. Section 10 of the 2007 Act permits review of a decision, but not if the decision is an excluded decision. There had in the present case been a decision; but, being a decision on an application for permission to appeal, it was an excluded decision. The Tribunal accordingly had no power to review its decision under s. 10 and accordingly no power to set aside the grant of permission. … 27. Evidently the Court of Appeal thought it desirable to deal with the matter in those general terms. Reaching the view that it did, it did not need to point out that the decision could not have been the subject of review under s.10 in any event, because the Tribunal was not considering an application for permission to appeal to the Court of Appeal: see rr 45 and 46, and s. 10(3)(a), discussed above. The judgment is clearly binding on the Upper Tribunal in all its Chambers, and it is in our judgment of considerable importance as much for what it does not say as for what it does. The Court was concerned to discover whether the Upper Tribunal had power to set aside a decision that, in the Tribunal's view, had been reached in the absence of a full appreciation of the facts. In these circumstances the Court's concentration on the review power under s. 10 of the 2007 Act and the absence of any reference to either the inherent power of a Superior Court of Record or the powers given by s. 25 must constitute a decision that those powers either do not exist or, if they do, were wholly irrelevant to the issue before the Court. It appears to us, therefore, that Patel puts to an end any speculation based on the judgment of Sedley LJ in Akewushola and, further, decides that whatever powers are granted by s. 25 of the 2007 Act, they do not include any power to rescind that deserved examination in the circumstances of the facts of Patel. That is important. It appears to mean that the Tribunal (in all its Chambers) has no inherent power to set aside its decisions, and no power derived from the powers of the High Court; further, in the Chambers governed by the UT Rules, it has no power to set aside its decisions other than in the circumstances set out in rules 43 and 45-46 respectively. That means that the power to set aside a decision is limited to (i) setting aside a decision that terminates proceedings, on the ground of procedural error, and (ii) setting aside a decision by way of review, where an application for permission to appeal to the Court of Appeal is being considered and one of the two circumstances in rule 45(1) applies.”
[44]Mr Malik advanced three arguments as to why, on the basis of the Tribunal Rules and these two authorities, the President had no jurisdiction to review the decision made on the papers by UT Judge Chalkley. First, he said that the decision to refuse the amendments was not a case management direction under Rule 5, but a case management decision, which did not bring with it a right of review under Rule 6(5). Secondly, he said that Rules 30(3) and 30(4) – which did suggest a right of review - did not apply to decisions of this kind. Thirdly, he said that, in accordance with Patel and Fawad Jan, the UT’s power to review was limited to the situations referred to in Rules 43 – 45 and 46 of the Tribunal Rules, which did not include case management decisions.[45]I reject Mr Malik’s first argument for six reasons.[46]First, there is no justification for distinguishing between directions and decisions in the way that Mr Malik attempted. Once made, whether it is called a case management direction or a case management decision, it becomes an order of the UT pursuant to Rule 5. As I see it, there is an unequivocal right to a review of that order, pursuant to Rule 6(5).[47]Secondly, any distinction between a case management decision and a case management direction of the sort urged by Mr Malik would be unnecessarily technical and impossible to operate in practice. Indeed, during the hearing, Mr Malik tried to draw various fine distinctions between, say, a direction under Rule 5(3)(i) regarding the preparation of bundles, and a decision on other, more significant case management matters, such as refusal of amendments. That approach became difficult because, as he accepted, there was no demarcation in the Rules between the directions and decisions.[48]Thirdly, I consider that a reading of Rules 5 and 6 which acknowledges the width of Rule 6(5) is consistent with s.10 of the 2007 Act. That provides a general power to review pursuant to s.10(1) and although, pursuant to s.10(3), the Tribunal Rules could have restricted the right to review so as to exclude some or all case management decisions, they do not do so. I consider that Mr Southey QC was right to say that, if it was intended to exclude some or all case management decisions/directions from the category of those capable of being reviewed under s.10, Rules 5 or 6 would have expressly said so.[49]In order to address a subsidiary point raised by Mr Malik, I should add that, in accordance with s.10(8), any right to review is not limitless. There will be one original decision, which is capable of being reviewed and affirmed or set aside on one occasion only.[50]Fourthly, it would be counter-intuitive to read Rules 5 and 6 as preventing a review of a substantial case management decision (a strike out, say) but permitting a review of a decision about the preparation of the bundles. No substantive justification for such a curious interpretation was provided.[51]Fifthly, it would be similarly curious – as Mr Southey QC pointed out – if an applicant could apply for a review when permission to bring judicial review proceedings has been refused on paper, but had no equivalent right to review an equally fatal decision from the applicant’s perspective (such as one to strike out or, as here, to refuse the amendments which raised the single live issue between the parties), merely because such a decision was a case management matter. The Rules would have to spell that out if that was the intention, and they do not do so.[52]Finally, I consider that this approach is also consistent with common sense. Many case management decisions in the UT are made on the papers, so the right of review is an important safeguard.[53]For these six reasons, I consider that Rule 6(5) provided the necessary jurisdiction to allow the President to review UT Judge Chalkley’s decision. I therefore deal briefly with Mr Malik’s other two arguments about the Rules simply out of completeness.[54]I consider that Mr Malik’s second argument, about Rules 30(3) and 30(4), is a red herring although, in fairness to him, Mr Spahiu’s requested review was originally made under these Rules. Of course, by the time of the hearing, Mr Southey QC was rightly relying, not on these Rules, but Rules 5 and 6. I agree that Rules 30(3) and (4) relate to substantive decisions on the merits, not case management decisions.[55]I also reject Mr Malik’s third argument. It seems to me that the decisions in Patel and Fawad Jan are concerned with completely different questions, namely applications for permission to appeal and the concept of excluded decisions. They were not concerned with case management matters or the operation of Rule 6(5).[56]For these reasons, therefore, I consider that there is a general power to review case management decisions in the UT because the statutory power to review in s.10 was not excluded by the Tribunal Rules and was instead expressly preserved by Rule 6(5). The President had the jurisdiction to review Judge Chalkley’s order refusing permission to amend.

Issue 3b) Merits

[57]There are two possible reasons why this court might set aside the President’s decision to allow the application to amend on its merits: if there was a procedural reason that meant that the amendments should not have been allowed, or if there was a reason of principle that should inevitably have led to the amendments being refused.[58]As to the procedural history, there can be no issue. The President said that “no significant issue of delay or prejudice is identifiable” if the amendments were allowed. Mr Malik did not suggest to the contrary. There is therefore no procedural reason to prevent the amendment of the statement of facts and grounds. Is there a reason of principle?[59]UT Judge Chalkley’s decision is set out at paragraph 9 above. He concluded that permission to amend should not be granted because the target of the original judicial review challenge had disappeared (because the removal directions were cancelled) and the amendments, which related solely to the subsequent decision, were a completely different challenge and required different proceedings.[60]Mr Malik supported that conclusion. He said that, if the amendments were allowed, the respondent would be using these judicial proceedings as a sort of “rolling review”, endeavouring now to capture claims arising out of an event – the decision of 17 September 2015 – which only occurred after the proceedings had commenced. He submitted that this court has repeatedly said that judicial review proceedings should not be used for the purposes of a rolling review: see (amongst others) R (Tesfay) & Ors v The Secretary of State for the Home Department [2016] EWCA Civ 415; [2016] 1 WLR 4853; and R (Ahmed) v The Secretary of State for the Home Department [2017] EWCA Civ 118.[61]Mr Southey QC sought to rely on other decisions where, on the particular facts of the case in question, the court had found it convenient to deal with a challenge to a subsequent decision in the existing proceedings. Those decisions include R v Secretary of State (ex parte Turgut) [2001] 1 All ER 719 and R (O) v Hammersmith and Fulham London Borough Council [2012] 1 WLR 1057.[62]I consider that the present approach of the courts to this issue is best summarised by Lloyd-Jones LJ (as he then was) in Tesfay at paragraph 78:
“78. Rolling or evolving judicial review of this kind does, in my view, give rise to difficulties both in principle and in practice. In R (A) v. Chief Constable of Kent [2013] EWCA Civ 1706 Beatson LJ observed that the impact of the reviewing court scrutinising post-decision material is likely to be particularly significant in contexts in which there will frequently be a change of circumstances or in the evidence available between the time of the original decision and the time the matter comes before the reviewing court. Sometimes, in an immigration context for example, the Secretary of State will not object to the court considering further evidence, which was not before the Secretary of State. Here the court may be willing to adopt a flexible approach which will enable it to do justice. However, there are dangers in a court becoming too entangled in post-decision material and the legality of later decisions. "Moreover, in a sense, the court can be said to step outside its primary role. It will not only be adjudicating on the dispute between the parties as to the legality of the original decision made. It will become part of a rolling administrative decision–making process, in which a decision by the Secretary of State is followed by challenge, which is followed by new material which in turn is followed by a further decision, with the possible interposition of the court at any or all of these stages. Such "rolling judicial review" appears unprincipled. It is also liable to lead to confusion and to sideline the administrative process laid down by the legislature." (at [83])”
[63]In short, there is no hard and fast rule. It will usually be better for all parties if judicial review proceedings are not treated as “rolling” or “evolving”, and it is generally simpler and more cost-effective for the reviewing court to avoid scrutinising post-decision material. But there will also be a need to maintain a certain procedural flexibility so as to do justice as between the parties.[64]In my view, this was a case in which the President was entitled to reach the view he did, and to adopt a measure of flexibility. The challenge to the removal directions was based on the respondent’s Article 8 claim. The challenge to the decision to reject his Article 8 claim (the subject of the amendments) was necessarily concerned with the very same claim. This is not a case about supplementary decisions and the like. The claim has always been founded on the same basis. So the President was entitled to conclude that, on the particular facts of this case, fresh proceedings were not necessary such that the application for permission to amend should be granted. Other judges may have reached a different conclusion, but there was no error of law.[65]I should add by way of completeness that, although Mr Southey QC said that the funding for legal representation may be adversely affected if the amendments were refused, I consider that it is a bad point for two reasons. First, although Regulation 5A of the Civil Legal Aid (Remuneration) Regulations 2013 provides that there is no right to payment if a fresh decision is taken, that does not apply if the earlier decision is withdrawn. Here the earlier decision (to set removal directions) was withdrawn. There is therefore no issue. Secondly, R (Bhatti) v Bury MBC [2013] EWHC 3093 (Admin), at [27], is authority for the proposition that matters such as funding cannot dictate the procedure that a court or tribunal should follow.

Issue 3c) Was The Procedure Materially Unfair?

[66]Although there were a number of aspects to Mr Malik’s submission that the procedure followed by the President was unfair, they boil down to two: his review was conducted on paper, and the result came out of the blue, at a time when the parties were waiting to hear back from UT Judge Rintoul.[67]As to the first complaint, although the Tribunal Rules do not require that any review be conducted by way of an oral hearing, I agree that, following the earlier hearing before UT Judge Rintoul, there may have been a reasonable expectation of a further oral hearing in this case.[68]As to the second complaint, I also agree with Mr Malik that the parties should have been told that the President was conducting a review in this case (particularly given that he apparently wanted to use it to give general guidance as to when amendments could be made without permission). The parties should have been told in advance of the preparation of the March (and April) judgments, so they could make the appropriate submissions. Mr Malik is also right to say that the President decided issues which had not previously been argued. For these reasons, I accept that there was a clear breach of natural justice.[69]But I do not consider that the breach was material. If there had been argument, whether oral or written, the President would have been told that some of the issues had already been debated before UT Judge Rintoul. But that would not ultimately have led anywhere, since that judge had not decided the principal point which had been argued before him (as to jurisdiction) and we have now ruled against the appellant on that point anyway.[70]Furthermore, although the President came to the wrong view as to when permission was required for amendments, that too has now been corrected. As to the merits of the application to amend, the arguments before this court have confirmed that he came to a view that he was entitled to reach.[71]Accordingly, any breach of natural justice (because the appellant was unable to make submissions prior to the March or April judgments being provided) was not material, and do not affect the validity of the President’s decision to allow the amendments.

Disposal

[72]For all those reasons, therefore, I consider that, insofar as the President’s April judgment decided that permission was not required for amendments made after the filing of the statement of facts and grounds, it was wrong. Permission is required for any amendments produced after service of the statement of facts and grounds.[73]Insofar as the President’s April judgment decided that the application for permission to amend should be granted, it should be affirmed. There was jurisdiction; the President was entitled to reach the view he did on the merits; and the breach of natural justice was not, in the end, material.[74]This matter must now be remitted to the UT for a substantive decision on the Article 8 claim. In this way, the matters raised in Mr Spahiu’s cross-appeal, which was made simply to preserve his position, will be addressed by the UT.

Lord Justice Hamblen :

[75]I agree.

Lord Justice Patten :

[76]I also agree.

Cited in 18 later judgments

and 9 more of the most senior