Appendix 2
S.I. 2011/2343: memorandum from
the Ministry of Justice
Tribunal Procedure (Upper Tribunal) (Amendment)
Rules 2011 (S.I. 2011/2343)
1. By a letter dated 2 November 2011, the Committee
sought a memorandum on the following points:
(1) Explain whether rule
8(1)(b) substituted in S.I 2008/2698 by rule 5 is intended to
cover failure to comply with undertakings accepted under rule
28A inserted into that instrument by rule 8 and —
(a) if so, explain the
mismatch between the reference to a requirement in the former
and the reference to an undertaking in the latter, and
(b) if not, explain which
fees are intended to be covered by rule 8(1)(b) and how effect
is given to that intention.
2. The Ministry of Justice's response to the
Committee's queries is set out below.
3. Under Schedule 1 to the Upper Tribunal (Immigration
and Asylum Chamber)(Judicial Review) (England and Wales) Fees
Order 2011 (S.I. 2011/2344) a fee is payable when permission
to apply for judicial review is sought. If granted, a further
fee is payable within 7 days of service on the applicant of the
order giving permission to proceed.
4. Rule 28A of S.I.2008/2698, as inserted by
rule 8, deals with the situation where the Upper Tribunal has
an application for permission to seek judicial review before it.
At that point an undertaking to pay may be accepted by the Tribunal
who may then proceed with the application.
5. Rule 8(1)(b) of S.I.2008/2698, as substituted
by rule 5, deals with where a fee has not been paid following
the grant of permission. This could include where a party has
failed to honour an undertaking to pay a fee on application which
the Tribunal accepted under rule 28A. It would also cover the
failure to pay the fee following the grant of permission.
6. Following the granting of a permission application,
the applicant will be written to and informed that for the hearing
of their judicial review to go ahead they must pay any outstanding
fee. No undertaking for that payment can be given or accepted,
and the hearing will not be listed until that payment is received
(unless an exemption applies). If a fee is not received then the
proceedings will be struck out in accordance with the new rule
8(1)(b). The intention is to align the process for receipt of
fees as set out in CPR for judicial reviews in the High Court.
Ministry of Justice
7 November 2011
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