R (on the application of JS, SJ, SS and NL) v Secretary of State for the Home Department

Summary

The applicants in this case were all minors who had issued applications for judicial review in the Upper Tribunal. The absence of any provisions in the Tribunal Procedure (Upper Tribunal) Rules 2008 and practice directions regarding the use of litigation friends in judicial review proceedings before the Upper Tribunal meant that there was a degree of uncertainty when an application for immigration judicial review was made in respect of a child without a litigation friend. The Lord Chancellor was joined as an interested party so that the Tribunal could give general guidance on whether a litigation friend should be appointed.

The Tribunal recognised that "[i]t is now firmly established that the Upper Tribunal has power to appoint a litigation friend and that, in certain circumstances, not to do so will amount to a breach of the common law principles of fairness and access to justice" (para 70). Although the issue arose in the context of immigration judicial review proceedings, the Tribunal's general guidance is also relevant to statutory appeals in the Immigration and Asylum Chambers of both the First-tier Tribunal and the Upper Tribunal.

The Upper Tribunal gave general guidance as follows:

• whether the applicant is legally represented;
• whether there is an assisting parent;
• whether there is a local authority involved; and
• whether the applicant has any type of vulnerability.
• If an applicant in this age group is legally represented, the Tribunal will expect the representative specifically to address in writing the issue of whether, in the representative's view, a litigation friend is necessary, having regard to capacity and the position of any parent.
• Applicants under the age of 12 will normally require a litigation friend.
• The above approach is one that, as a general matter, should also be followed in appeal proceedings, whether in the First-tier Tribunal or the Upper Tribunal.
• In deciding who is to be a litigation friend in a particular case, the guiding principles, derived from the Civil Procedure Rules, are:
• can he or she fairly and competently conduct proceedings on behalf of the child?
• does he or she have an interest adverse to that of the child?
• For practical purposes, only one person should normally be nominated as a litigation friend. A parent of a child will often be the obvious choice but not the only option.

The Upper Tribunal also confirmed that the duty of the litigation friend is to (i) to act competently and diligently and (ii) to act in the best interests of (and without conflict with) the party for whom he is conducting proceedings.

Comment

At a practical level, the Upper Tribunal's general guidance is welcome – filling an obvious gap in the Tribunal Rules which make no provision for the appointment of a litigation friend. Although the guidance was only given in respect of minors (as all applicants in the case were under the age of 18), the judgment usefully confirms that the Upper Tribunal (and First-tier Tribunal) has the power to appoint a litigation friend and, we would suggest, there is no reason in principle why this power could not extend to appoint a litigation friend on behalf of an adult who lacked capacity to conduct proceedings. What remains to be seen are the practical consequences of the Tribunal's guidance. In relation to minors, the obvious candidate for litigation friend is the parent but this may not always be possible or appropriate. Drawing on the approach under the Civil Procedure Rules, the Tribunal noted that the Official Solicitor may act on behalf of a child if there is no one else to act. However, where it is sought to appoint the Official Solicitor as the litigation friend, "provision must be made for payment of his charges". Quite how the Official Solicitor's costs will be met in such circumstances is unclear, especially if there is a risk of adverse costs and, as ever, resources may well be a limiting factor.

More widely, it is interesting to note that the Upper Tribunal, untrammeled by procedural rules, took the view that they did not accept that a child had to have a litigation friend unless the court or tribunal ordered otherwise, and was "emboldened" (at para 79) by the presumption of mental capacity in the MCA 2005 in relation to children aged 16 and 17.  Indeed, in light of these observations, one might think it was, in fact, anomalous that none of the Civil Procedure Rules, the Court of Protection Rules or the Family Procedure Rules proceed on the basis of a presumption that a child aged 16 or 17 has the mental (and hence legal) capacity to give instructions.