Upper Tribunal can accept late acknowledgment of service in judicial review cases

The Upper Tribunal can consider late acknowledgments of service from the Home Office when deciding whether to grant permission for judicial review proceedings, the Court of Appeal has ruled in KA v Secretary of State for the Home Department [2021] EWCA Civ 1040.

Issues in the case

The first issue concerned the interpretation of Rule 29 of the Tribunal (Procedure) (Upper Tribunal) Rules 2008. The question was whether the Upper Tribunal can consider a late acknowledgement of service, provided after the usual 21-day time limit. 

The second issue was whether the tribunal’s unilateral decision to give the Home Office 42 days to file acknowledgment of service, rather than the usual 21 days, was lawful – the Kumar arrangements, in place from 2014 to 2019.

Can the tribunal accept a late acknowledgement of service?

Rule 29(3) says that a person who fails to provide an acknowledgment of service:

… may not take part in the application for permission, but may take part in the subsequent proceedings if the application is successful.

The Upper Tribunal had decided that this provision only applies to a situation where no acknowledgment of service was lodged at all. It did not apply to a late acknowledgment.

KA argued that Rule 29(1) imposed a mandatory requirement to provide an acknowledgment of service within 21 days. If that did not happen, the Home Office needed to either make an application for an extension of time or ask the tribunal for some other case management decision to admit the late acknowledgment.

The court sided with the Home Office on this one. It decided that the underlying purpose of the procedure rules would be undermined if a late acknowledgement were ignored, since it

may contain factual information not known to the claimant, or may draw attention to legal provisions or arguments of which a claimant (who may be a litigant in person) or his representatives may be unaware. The acknowledgment of service may include other information, for example, the identity of other interested parties or the need for expedition, which may assist the Upper Tribunal to manage the claim if permission is granted. The interpretation placed on rule 29(3) by the appellant would therefore be inconsistent with the efficient administration of justice, and, potentially, with the interests of the claimant and the defendant.

Looking at the wording of Rule 29, another point which arose was that the rules restricted a defendant from “taking part” in the application for permission “unless allowed to do so”. This raised the obvious issue that:

The way that a defendant would normally “take part” in the application process at the paper stage is by the provision of an acknowledgment of service… The use of the language therefore anticipates that the power conferred by the rule may be used… by allowing the defendant to take part by having his acknowledgment of service considered before a decision on permission is granted.

Broadly, the Court of Appeal followed the Upper Tribunal’s reasoning, but it did reprimand the Upper Tribunal for drawing a very technical comparison between its procedure rules and the Civil Procedure Rules. That was not appropriate since the Tribunal Procedure Rules are self-contained and free-standing.

Were the Kumar arrangements lawful?

The second issue (the lawfulness of the Kumar arrangements) was given short shrift and dismissed as academic without any meaningful analysis. The court did not seem particularly interested in the appellant’s argument on this point:

The issue is not one that is likely to arise in the future or need resolution, as the Kumar arrangements were discontinued with effect from 1 January 2019. Claims for judicial review issued after that date have not been dealt with in accordance with those arrangements. There is no prospect that anyone whose claim for judicial review was dealt with prior to that date would be able now to bring any appeal.

Ultimately, then, what we can take from this case is the basic point that the Upper Tribunal can consider a late acknowledgment of service. It would have been surprising if it could not. The Court of Appeal’s point that it would undermine the process if the acknowledgment was late but still had valuable arguments or information, was compelling. It may be worth remembering for future arguments about the provisions of the Nationality and Borders Bill that seek to penalise late evidence in asylum and human rights cases.

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