Litigation Friends in the Immigration Tribunals

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Hi, and welcome to this latest immigration law update video. In this video, I'm going to look at the guidance on the appointment of litigation friends in immigration and asylum appeals. So that's both in the Upper Tribunal and in the First-tier Tribunal, because there's been new joint presidential guidance given in December 2024.

I've put the link to this guidance below this video, and I've shared my screen. It's the link from EIN, but this is part of the public EIN site and is available to everyone. So the guidance is entitled The Joint Presidential Guidance Number One of 2024. I'm recording this at the start of 2025, but Number One of 2024 wasn't published until December of 2024, and it's called The Appointment of Litigation Friends in the Upper Tribunal IAC and First-tier Tribunal IAC.

Now this guidance is to be read alongside the Equal Treatment Bench Book, and that's really important, especially for people who've got vulnerable clients, to be aware of the guidance in the Equal Treatment Bench Book and also the Joint Presidential Guidance Note Number Two of 2010 on child, vulnerable adult, and sensitive appellant guidance.

Now the thing to be aware of in paragraph 4 is that an assessment of capacity is distinct from making adjustments to accommodate somebody's vulnerabilities or particular needs. Paragraph 5: an appointment of a litigation friend is a rare step. Many litigants or witnesses in the immigration tribunal are highly vulnerable and will need adjustments and accommodations made, and in fact, if vulnerabilities are not taken into account, it may render proceedings unfair or involve the making of an error of law. But paragraph 6: it's important to note that a finding that a party does have capacity to conduct litigation should not be confused with a finding that no such reasonable adjustment will be necessary. A party who is unfit to give evidence, even with reasonable adjustments, may still have capacity to conduct proceedings and vice versa.

Paragraph 7, then the introduction, there are no rules of procedure governing the appointment and the role of litigation friends in the tribunals. But in 2017, there was a Court of Appeal decision called AM (Afghanistan), and the senior president of the tribunal said in that case the case management powers enjoyed by the tribunal are flexible enough, in the rare circumstances that a litigation friend is needed, to be able to do so. Pending the adoption of new procedure rules to cover this, the guidance should be—this guidance, this presidential guidance—should be followed.

So A, B, and C. The guidance is divided into when a litigation friend is required, the role and duties, and the selecting and appointing of a litigation friend.

So A, when is a litigation friend required? Well, it's only where a person does not have the capacity to conduct litigation, and that's a rare circumstance. Paragraph 11 splits it up into a child who is not capable of conducting or giving instructions in relation to the proceedings. So it's not just being a child on its own; it's a child who is not capable of conducting proceedings or giving instructions in relation to proceedings, or an adult who lacks the mental capacity required to conduct proceedings.

So then part A is broken down, firstly, into children. So in contrast to the CPR, there is no rule that a child must have a litigation friend in immigration appeals. The guidance to be followed is actually set out in the headnote of a case called JS—that's 2019 UKUT 64. Again, I'm not going to read through it. I just want to briefly point out they give some broad guidance in terms of ages. So a 16- to 17-year-old child without any special needs would be presumed to have capacity and generally will not require a litigation friend. If you've got a child between 12 and 15, there are some specific questions to be considered about whether they're represented, whether there's an assisting parent, whether the local authority is involved, if there's any type of vulnerability. And then applicants under the age of 12 will normally require a litigation friend.

Paragraph 14 deals with age assessment judicial reviews. These principles apply to age assessment judicial reviews. Paragraph 15 is worth noting: where a child is a dependent of their parent—so it's a sort of family appeal, mom and dad are there, and the child is the dependent—they’re unnecessary to require; they're unlikely to require a separate litigation friend.

Part A then deals with adults without capacity. So we've done children—what about adults without capacity? Well, there's a presumption that an adult has the capacity to conduct litigation. The definition is set out in the Mental Capacity Act at Section 2. So for the purpose of this act, a person lacks capacity in relation to a matter if, at the material time, he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in, the functioning of the mind or the brain. And it doesn't matter if that impairment or disturbance is permanent or temporary.

A lack of capacity cannot be established merely by reference to a person's age or appearance, or a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity. And the test is the balance of probabilities. Subsection 4: capacity, paragraph 20, is to be judged by reference to the activity or litigation in question and not globally. So it's a sort of specific test, not a global test. A person may have capacity for some purposes but not for others, and capacity may fluctuate from time to time. So that's why there's the reference to the material time.

So there it sets out some more in relation to the test. I just want to draw your attention to paragraph 24. Even when the parties agree to the appointment of a litigation friend, it will still be necessary for the tribunal to be satisfied that the party in question lacks capacity, or, if the party's a child, that the criteria in JS militate in favour of the appointment of a litigation friend.

So we had Section A, children, adults without capacity. Section B, the role and duties of a litigation friend: they're not a party, but they're appointed to conduct proceedings on behalf of a party who lacks capacity to do so. They must fairly and competently conduct the proceedings, must act in the best interest, and have no interest adverse to the interest of the party without capacity.

Then Section C deals with the selecting and appointing of a litigation friend. They must consent. A parent, normally with a child, will be the obvious choice but is not the only option.

I just want to jump to paragraph 30. In the event that there is no one willing to be a litigation friend, the Official Solicitor has a power but not a duty to act as a litigation friend in the tribunal. So in judicial review, that's dealt with at paragraph 31, and how to make the application. In a judicial review, in a statutory appeal, there is no prescribed form. The application must be made in writing and should include the following details, and the details that need to be set out are set out in paragraphs 32 and 33.

In both judicial review and statutory proceedings, an application for a litigation friend must contain the evidence pursuant to which the tribunal is being invited to make a finding, or endorse the party's agreement, that the party lacks capacity. This is most likely to be in the form of a medical report prepared specifically for the purposes of the proceeding. So make sure you've got the appropriate assessment done by a qualified professional to show that the individual lacks capacity.

So if you are dealing with somebody who lacks capacity and you feel a litigation friend will be necessary, do look at this guidance and follow it. Get the appropriate evidence and make the appropriate application to the tribunal. I've put the links below this video, but I hope that's helpful to you. Thanks very much.