R (on the application of KA and another) v Secretary of State for the Home Department (ending of Kumar arrangements) [2018] UKUT 00201 (IAC)
On 22 May 2018
DECISION
The Upper Tribunal made some arrangements regarding Judicial Review proceedings in the case of Kumar (2014).
Under rule 29(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008, when a Judicial Review application is lodged, the Secretary of State has 21 days to file what is called an Acknowledgement of Service (AoS) which confirms receipt of the claim and its intention to defend some or all of it or contest the Court’s jurisdiction to deal with the claim.
One of the main outcomes from Kumar was that the Secretary of State was not obliged to file an application for an extension of the 21-day time limit for filing an AoS, unless the Secretary of State was unable to file an AoS within six weeks of being provided notice by the applicant with a copy of the Judicial Review application. Therefore, the Secretary of State could extend the time limit up to 6 weeks without applying for an extension of time.
The need for the arrangements stipulated in Kumar arose because of the chronic inability of the Secretary of State to file an AoS in immigration judicial review proceedings within the 21-day time limit, due to high pressure placed upon the Upper Tribunal.
Part of the arrangements made in Kumar involved the ability for an applicant to write to the Upper Tribunal in a case where, although urgent consideration was not sought, the applicant nevertheless wished to have her/his application put before a judge before the period of six weeks from filing of the application.
This could be the situation when the decision under challenge comprised a restriction on access to public funds, putting the applicant and her/his family under serious financial hardship. This also can be the situation when the decision under challenge is related to a child’s indefinite leave to remain affecting the child’s participation in school activities and putting anxiety on foster parents.
The Upper Tribunal in their decision dated 22 May 2018 confirmed that the fact that the Tribunal continues to face similar pressures is not a sufficient reason to continue the arrangements. Currently, in a significant number of cases, the 21-day deadline is still not being met.
Therefore, the Upper Tribunal decided that the Kumar arrangements should cease altogether from 1 January 2019. Accordingly, the Kumar arrangements will not have effect in respect of any application for permission to bring judicial review proceedings which is filed with the Tribunal after 1 January 2019.
Consequently, the Secretary of State will have to make the necessary arrangements to ensure that, as from that date, he will be in a position to meet the 21-day requirement in the majority of cases, and that, in those cases where he cannot, applications for extensions of time under rule 5 can be duly made.
If you have any questions relating to Judicial Review or how to challenge a refusal from the Home Office, please do not hesitate to get in touch and one of our experts will be happy to assist you.
