Drawing special attention to five statutory instruments - Statutory Instruments Joint Committee Contents


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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