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Litigation Friends in Immigration proceedings: OISC

What are litigation friends?

Litigation friends are a common feature in many civil cases and are covered with the Civil Procedure Rules.  Litigation friends are less common in immigration proceedings, but it is possible for the Tribunal to appoint a litigation friend in certain circumstances.

The gov.uk site states that:

“You can be appointed as litigation friend to make decisions about a court case for either: an adult who lacks the mental capacity to manage their own court case either with or without a solicitor; a child”

The gov.uk states that a litigation friend cannot be appointed in Tribunal proceedings, but this is not the opinion of the courts. 

In R (on the application of JS and Others) -v- Secretary of State for the Home Department (litigation friend – child) [2019] UKUT 00064 (IAC) at paragraph 19 a litigation friend is defined as follows:

“A litigation friend is not a party to the proceedings but has a role to conduct proceedings on behalf of the person concerned. The duties of a litigation friend are not expressly defined in the [Civil Procedure Rules] but the notes to the ‘White Book’ say that the duty is ‘fairly and competently to conduct proceedings on behalf of a child or patient’ and ‘have no interest in the proceedings adverse to the child or patient and all steps and decisions he takes in the proceedings must be taken for the benefit of the child or patient’.”

A litigation friend is described on the gov.uk website as having the following duties:

“You must ‘direct the proceedings’ on behalf of the other person if you’re their litigation friend. This means you’ll:

  • make decisions in their best interests
  • do everything you can to tell them what’s happening in the case and find out their wishes and feelings
  • talk to their solicitor about what’s happening, get advice from them and give instructions to them in the other person’s best interests
  • pay any costs ordered by the court”

Where does the Tribunal’s power to appoint a Litigation friend come from?

Well, in JS it states at paragraph 17: ”There is no express power in the Upper Tribunal Rules for the appointment of a litigation friend. The position is the same in the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014.” 

In AM (Afghanistan) -v- Secretary of State for the Home Department [2017] EWCA Civ 1123 the Senior President of Tribunals held at paragraph 44:

“I have come to the conclusion that there is ample flexibility in the tribunal rules to permit a tribunal to appoint a litigation friend in the rare circumstance that the child or incapacitated adult would not be able to represent him/herself and obtain effective access to justice without such a step being taken.”

In particular there is power within the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 particularly Rule 2, that is the overriding objective of the Tribunal:

2.—(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly,

There are also provisions within Rule 4 (case management powers) and 14 (evidence and submissions) of the Procedure Rules.

If you have a client who you believe should have a litigation friend appointed, you would be very well advised to contact the Tribunal prior to the hearing to make the application for a litigation friend in writing.  The Tribunal are unlikely to be impressed with an application for a litigation friend to be appointed on the day of the hearing.  In the event this is impossible to avoid, then you may also consider whether an adjournment application may be appropriate with a request for the Tribunal to consider the application as a preliminary issue. 

Keep up to date

Westkin Associates regularly publishes clear and detailed guidance for OISC advisors on this blog.

Contact us for further information at: 020 7118 4546 or email us at info@westkin.com

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