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Guidance from tribunal on strike out powers and appeal to Court of Appeal as remedy

Guidance from tribunal on strike out powers and appeal to Court of Appeal as remedy

Official headnote:

(i) A decision of the Upper Tribunal refusing to exercise its power to reinstate a judicial review claim which has been struck out may be the subject of an application for permission to appeal to the Court of Appeal.

(ii) Such a decision, given its nature and consequences, is not to be equated with a mere case management decision.

(iii) Every decision upon an application to reinstate must give effect to the overriding objective.

(iv) Rule 8 of the Tribunal Procedure (Upper Tribunal) Rules 2008 provides the only mechanism for challenging a strike out order. Rule 43 has no application in this context.

The directions in these and hundreds of other cases, many of which will have been handled by the same small firms of solicitors, were that cases would automatically be struck out if the claimant did not serve within 7 days amended grounds for judicial review distinguishing the facts of an individual case from complex Court of Appeal and Upper Tribunal authorities.

7 days. To read, understand, get money from client and draft amended grounds or instruct Counsel. Automatic strike out. Hundreds of cases.

On the face of it, the giving of these directions seems like unbelievably arbitrary behaviour by the tribunal which was obviously contrary to the overriding objective. The directions seem to be deliberately designed to lead to strike out in as many cases as possible. Why 7 days? What was the hurry? Why not 14 days or 28 days? It is impossible to imagine the Secretary of State for the Home Department being treated in similar manner. Perhaps there is more to it, but that is certainly how it looks to an external observer.

Source: Zia and Hossan, R (on the application of) v Secretary of State for the Home Department (Strike out – Reinstatement refused – Appeal) [2017] UKUT 123 (IAC) (8 March 2017)

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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