In the recent case of R (on the application of C) v First-Tier Tribunal and Others  EWHC 707 (Admin) (not yet on BAILII but available on Westlaw) Picken J ruled that the immigration tribunal can appoint a litigation friend to represent a person who lacks capacity even though there is no provision to do so in the procedure rules, nor indeed in the statutory underpinnings of the tribunal.
The context to this case is that in July 2015 the Law Society issued a Practice Note (see section 4.7 and 4.7.1) which suggests that where a person lacks capacity to give instructions to a lawyer, a solicitor will not be able to act for that person in the absence of a litigation friend. This in effect put an end to the informal way in which the issue had previously been fudged in immigration cases, which was for lawyers to act on the clients last known instructions and/or in their best interests. In the context of immigration law, that was usually to resist removal and/or obtain lawful status. If the client regained capacity and wanted to depart at that time, he or she would be able to do so.
The Official Solicitor has no statutory power to intervene in tribunal proceedings and the immigration tribunal procedure rules do not allow for the appointment of a litigation friend, in contrast with many other sets of procedural rules and the Civil Procedure Rules (CPR). But with no lawyer acting to protect the interests of a person lacking capacity, the Home Office will simply take enforcement action and remove him or her.
The litigant in this case was just such a person. The judge does not describe in detail the situation of the particular litigant but does say this:
All that matters for present purposes is that the claimant, who is currently subject to immigration detention, is detained under the Mental Health Act 1983 in the intensive care unit of a medium secure hospital and, importantly, lacks capacity to participate in the tribunal or immigration proceedings, whether by giving evidence, by instructing a legal representative or by understanding the evidence presented against him.
It was therefore a rather stark case where it sounds as if it would have been impossible for immigration lawyers to act and the Home Office would simply remove. Nevertheless, the First-tier Tribunal declined to appoint a litigation friend. That decision was challenged, with the First-tier Tribunal, the Tribunal Procedure Committee and the Lord Chancellor named as defendants. Only the Lord Chancellor elected to take part in the hearing, and agreed that the decision was unlawful on the grounds of breach of common law fairness and should be quashed.
In the circumstances, Picken J gives brief reasons:
My reasons, very briefly, are that the common law concept of procedural fairness demands that, in a case such as the present, a litigation friend should be appointed. At the heart of this concept is the need to ensure that a person affected by a decision has an effective opportunity to make representations before the decision is made, so that he or she has the chance to influence the decision.
The judge refers to R v Home Secretary ex parte Doody  1 AC 531 at page 560 and to R v Osborn v The Parole Board  AC 1115 (see per Lord Reed at paragraphs, 2, 64–71 and 80–92). He goes on to refer to the Law Society practice note and goes on:
As these passages indicate, the solicitor is in difficulty, to put it mildly, taking instructions from a client without litigation capacity, hence the guidance stating that a litigation friend, attorney, or court appointed deputy, is needed in order for instructions to be provided and for the solicitor to act. Without a litigation friend who can instruct a solicitor on his behalf, the claimant in this case would also not be able to obtain legal aid. This, in circumstances where the outcome of his appeals is significant since he is liable to be removed to Nigeria…
In view of these considerations, I am quite clear that in the claimant’s case there would be a breach of this common law duty if a litigation friend were not appointed. The claimant’s mental health is such that he lacks capacity to take any of the steps which I have mentioned.
In a situation in which a litigant lacks capacity, it seems it will now be necessary for the tribunal to appoint a litigation friend in order that the person can be represented in proceedings. Hopefully the tribunal will at least be issuing a Practice Direction on this issue and the rules committee will consider making explicit provision in the rules in the interests of access to justice. Where these litigation friends are going to come from, whether they receive any guidance or training and of so from whom all remains to be seen.