What is the case law governing Litigation friends?
AM (Afghanistan) v. Secretary of State for the Home Department (2017) EWCA Civ 1123 gives part of the authority for the ability to appoint litigation friend within the Immigration Tribunal. In AM (Afghanistan) the Court of Appeal stated there was ‘ample flexibility’ within the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 and The Tribunal Procedure (Upper Tribunal) Rules 2008, both as amended, for the tribunal to appoint a litigation friend in the circumstances where a child or incapacitated adult would not be able to represent him or herself and obtain access to justice without such a step.
There is no specific power contained within the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, however, Rule 4 provides the tribunal with general case management powers. In R (C) v First-tier Tribunal  EWHC 707 (Admin) the Lord Chancellor supported a judicial review of the tribunal as the first-tier Tribunal had the power to appoint litigation friend and had refused to do so. Without this, the Claimant could not put forward representations, evidence or instruct a solicitor. All of this would breach the common law duty of fairness.
JS and Others v Secretary of State for the Home Department
In R (on the application of JS and Others) v Secretary of State for the Home Department (litigation friend – child)  UKUT 00064 (IAC) it was held that the Upper Tribunal had the power to appoint a litigation friend:
“70. It 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. What was said in this regard in AM (Afghanistan) is as applicable to the Upper Tribunal as it is to the First-tier Tribunal.
- The present edition of the Equal Treatment Bench Book is therefore right to assume there is a power to appoint a litigation friend and to emphasise
A litigation friend is not a party to the proceedings but conducts proceedings on behalf of the appellant or relevant person. They should take all measures to safeguard the interests of the protective party in the litigation. Civil Procedure Rules and the White Book provides guidance on the proper circumstances for the appointment of a litigation friend.
In JS & others states that:
- …, the CPR offers a valuable source of assistance with regard to some of the basic tenets relating to the appointment of a litigation friend and our approach ensures the Tribunal has the advantage of drawing from the well-settledd principles of the CPR, whilst at the same time ensuring there is adequate flexibility to tailor those principles to the exigencies of the facts of a particular case.
The decision ultimately rests with the tribunal
The decision ultimately rests with the tribunal as to whether to allow a litigation friend to be appointed or to appoint one themselves. In some circumstances, where an appellant lacks capacity, they may be unable to give instructions to solicitors or Counsel themselves.
A person does not have to be qualified in any way to act as a litigation friend, provided the litigation friend has no personal interest and provided their interests do not conflict with the appellant then they could be a litigation friend. A litigation friend must be able to make decisions in a fair and competent way and could be a parent, close relative, or any other person identified. In cases of children, it would usually be the parent that becomes a litigation friend, however, that is not the only option.
Westkin Associates is able to advise you on all immigration legal matters.