The Upper Tribunal is on the hunt for examples of Home Office delay in formally responding to judicial review cases taken against it. Immigration and Asylum Chamber President Peter Lane is keen to look again at the 2014 Kumar decision that granted government lawyers considerable leniency in filing acknowledgment of service, although there is no guarantee that the regime will be overhauled.
The tribunal’s procedure rules state that a government department served with an application for judicial review of its decision “must provide to the Upper Tribunal an acknowledgment of service so that it is received no later than 21 days [after service]”.
But several years ago, tribunal judges accepted the Home Office’s plaintive appeal that 21 days was too difficult. In the words of Vice President Ockelton and Judge Lane (before his elevation to President):
By the summer of 2013, it had become apparent that the Secretary of State was, in practice, unable in very many instances to serve an AoS within the required time limit, even though she wished to oppose the judicial review application.
The case was R (on the application of Kumar & Anor) v Secretary of State for the Home Department (acknowledgement of service; Tribunal arrangements) (IJR)  UKUT 104 (IAC). In it, the pair effectively over-wrote the tribunal’s rules to allow acknowledgement of service to take place within 42 days instead of 21, except where urgent.
Despite a pretty clear indication at the hearing that these “special arrangements” would have a clear end date following which the ordinary rules would apply, upon reflection this has been watered down to keeping the arrangements “under regular review”.
Whatever about “regular”, we now have the prospect of “review”. At a meeting of the practitioners liaison group last September, then-President McCloskey “stated that they needed a case instigated by an applicant in which general guidance could be given and Kumar could be revisited. Practitioners should be on the lookout for a suitable case”, according to the minutes.
Free Movement understands that now-President Lane has taken up the cudgels and last week put out a call for a selection of Kumar-relevant cases.
FYI all imm lawyers: UTIAC are seeking suitable cases in which they can review Ockelton J's decision in Kumar (re: automatic extension of time to 42 days for SSHD to file their AoS).
— Sonia L (@SoniaL77) January 30, 2018
These could be cases:
- Which do not warrant a request for urgent consideration but cannot wait beyond 21 days
- Where the Secretary of State has asked for an extension of time
- Where the extended 42-day limit is being missed
Practitioners acting in cases that might be suitable should make an interim application asking the tribunal to list the matter for an oral hearing before the President, referring to his request for examples relevant to a review of Kumar. A fly in the ointment, though, is that the President has suggested that this application might have to be paid for as normal, at least where there is no application by the Secretary of State to oppose.
The Government Legal Department is said to oppose any reconsideration of Kumar. It did not respond to a request for comment.
In January 2014 the tribunal said that the Kumar arrangements:
are intended to be a temporary response to what has been presented by the Secretary of State as a temporary systemic problem affecting her ability to comply with the relevant requirements of the Rules.
Fast forward a few years, and the temporary response has become the new normal. “Fewer than 40% of cases received an [acknowledgement of service] response within 21 days” in 2015/16, according to the Independent Chief Inspector of Borders and Immigration. Even the 42-day deadline is being routinely missed: “there was no month in which 90% of responses were provided within 42 days”.
As Colin has put it, “the Home Office is able routinely to ignore time limits without any real litigation or costs consequences”. This is in marked contrast to the automatic and instant strike out of cases against applicants for judicial review for failure to observe time limits.