Spahiu, R (on the application of) v The Secretary of State for the Home Department  EWCA Civ 2604 (28th November 2018)
This case provides important guidance from the Court of Appeal on amending grounds for judicial review in the Upper Tribunal. The then President of the Upper Tribunal, McCloskey J, had reversed a decision of UTJ Chalkley, refusing Mr Spahiu permission to amend his grounds for judicial review. The Secretary of State appealed. Three points in particular are noteworthy.
Firstly, the Court held that grounds for judicial review can be amended, without the need for permission and without incurring any fee, up to the point where they are served on the Respondent. Thereafter, it is necessary to apply for permission to amend and to pay a fee (paragraphs 25–27, 29, 35).
Secondly – and contrary to the submissions on behalf of the Secretary of State – the Court held that an applicant who has been refused permission to amend his grounds may apply to the Upper Tribunal to review that decision. The refusal to amend was a case management direction/decision (it mattered not which term was used) pursuant to Rule 5 of the Upper Tribunal Procedure Rules and jurisdiction to review such a direction/decision was provided by Rule 6(5) of those Rules and section 10 of the Tribunals, Courts and Enforcement Act 2007 (paragraphs 46–52, 56).
Thirdly, as to the merits of the review allowing the amendment (which had challenged a further decision of the Secretary of State made after the issue of judicial review proceedings) the Court stated (paragraph 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.”
There had been not error of law in this regard in the President allowing the amendment on the facts of the case (paragraph 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.”
Barnabas Lams, led by Hugh Southey QC, acted for Mr Spahiu.