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Upper Tribunal sets new procedure for missed appeal deadlines

Upper Tribunal sets new procedure for missed appeal deadlines

In immigration law, deadlines are important. They also frequently cause confusion. Bhavsar (late application for PTA: procedure) [2019] UKUT 196 (IAC) is an example of the complications that missing a deadline can cause.

In Bhavsar the Upper Tribunal decided that, where an application for permission to appeal is submitted to the First-tier Tribunal late, the tribunal should refuse to admit the application rather than refuse permission to appeal.

This is a subtle distinction. However it ensures that, when an application for permission to appeal is submitted to the Upper Tribunal, the Upper Tribunal can consider the reason for the delay and decide whether it is in the interests of justice to allow the case to proceed.

For those not familiar with immigration litigation, the process is as follows:

  1. An application is made to the Home Office
  2. The Home Office refuses the application
  3. An appeal against this refusal must be submitted to the First-tier Tribunal within 14 days of the date the applicant is sent the Home Office’s decision
  4. The First-tier Tribunal dismisses the appeal
  5. An application for permission to appeal to the Upper Tribunal must be submitted to the First-tier Tribunal within 14 days of the date the party making the application is sent the First-tier Tribunal’s decision dismissing the appeal
  6. The First-tier Tribunal refuses permission to appeal
  7. An application for permission to appeal to the Upper Tribunal must be submitted to the Upper Tribunal within 14 days of the date the party making the application is sent the First-tier Tribunal’s decision refusing permission to appeal
  8. If the Upper Tribunal refuses permission to appeal this is generally the end of the road (although in limited circumstances judicial review is possible). If the Upper Tribunal grants permission to appeal the case will proceed to a hearing in the Upper Tribunal.

When one of these deadlines is missed, the tribunal considers whether to “extend time”. If the tribunal refuses to extend time, generally the case cannot proceed.

Changes to the deadline

The procedural rule which confirms the deadline for step 5 above (submitting an application to the First-tier Tribunal for permission to appeal) used to say that the deadline was 14 days after the date the person making the application “was provided with” the tribunal’s decision. This wording was seen as ambiguous and changed (by the Tribunal Procedure (Amendment) Rules 2018, SI 2018/511) to make clear that the clock starts ticking on the date that written reasons are sent out — not the date on which they are received.

Despite the implication in the Explanatory Note to SI 2018/511 that the substitution of ‘sent’ for ‘provided’ had been made merely in order ‘to clarify’ the position, it is, in our view, clear that a substantive change had in fact been made. As a matter of ordinary language, a person is ‘provided’ with a physical thing when he or she receives or takes possession of it.

Frustratingly the unofficial consolidated version of the immigration tribunal rules on the gov.uk website does not include this change of wording. Nor does the legislation.gov.uk website, which provides the 2014 Procedure Rules in their originally enacted form with no amendments shown.

This is very misleading. Those submitting immigration appeals either need to have a subscription to an expensive legal database such as Westlaw or search for any statutory instruments which may have made changes to the tribunal rules [or stay glued to Free Movement – Ed.]. Given the harsh consequences of missing an appeal deadline, it is unacceptable that the rules published on the government’s website are not clear and up to date. The change was made over a year ago.

What happens when the deadline is missed?

Anyway, this change seems to have caught out the appellant in Bhavsar and led to the application to the First-tier Tribunal being submitted late. The tribunal refused to extend time and permission to appeal was refused.

According to the Upper Tribunal the correct course of action in this scenario is for the First-tier Tribunal to refuse to admit the application, rather than refusing permission to appeal. This is despite there being no specific power in the 2014 Rules providing for this:

…the decision of the drafter of the 2014 Rules not to reproduce rule 24(4) of the 2005 Rules, far from creating a restriction on the ability of the Immigration and Asylum Chamber of the First-tier Tribunal to refuse to admit an application on the specific grounds of lateness, appears to be a recognition of the Chamber’s inherent power to act in this manner, where it declines to extend time and give what is known as relief from sanctions.

As such, from now on, when an application to the First-tier Tribunal is late and an application to extend time is refused, the tribunal will refuse to admit the application rather than refusing permission to appeal. An application for permission to appeal will then need to be made to the Upper Tribunal explaining the reasons for the delay, demonstrating why it is in the interests of justice for the case to proceed despite the missed deadline.

As the Upper Tribunal put it, even when the application to the Upper Tribunal is in time, “the slate is not wiped clean”; an explanation and justification for the lateness of the previous application is still required. This is to avoid the “extreme undesirability” of a failure to comply with the tribunal’s rules becoming immaterial.  

Calculating the deadline

One other practical implication of the decision which caught my eye: the application must be received by the 14th day, not on the 14th day.

…the First-tier Tribunal’s decision in the appellant’s appeal was sent to his solicitors on 20 June 2018, after the amendments made by SI 2018/511 had taken effect. Accordingly, the date by which the First-tier Tribunal needed to receive his application was 3 July 2018 (not 4 July 2018, as the judge who refused permission appears to have thought).

I’m not convince that receiving something “no later than 14 days after” 20 June 2018 means it cannot be received 14 days after that date, on 4 July 2018. However this seems to be how the Upper Tribunal has calculated the deadline. To be on the safe side, I will now be marking deadlines in my diary a day earlier.

The official headnote

(1) There is nothing in the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 that prevents the First-tier Tribunal from refusing to admit an application for permission to appeal to the Upper Tribunal, where the application is made outside the relevant time limit and the First-tier Tribunal does not extend time.

(2) The appropriate course, in the case of such an application, is for the First-tier Tribunal to refuse to admit it. This will mean that any subsequent application to the Upper Tribunal in the case for permission to appeal to that Tribunal will be subject to rule 21(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008, whereby the Upper Tribunal must only admit the application made to it (whether or not that application was in time) if the Upper Tribunal considers it is in the interests of justice for it to do so.

Iain Halliday

Iain Halliday is a solicitor at McGill & Co, a Scottish law firm specialising in immigration and nationality law. He regularly assist clients with applications, appeals and judicial reviews in relation to EEA free movement rights, the right to private and family life and the best interests of the child, the Points Based System applicable to entrepreneurs and international workers, and naturalisation and registration as a British citizen. Iain is a member of the Immigration Law Practitioners’ Association and a member of the Law Society of Scotland's Immigration and Asylum Committee and has been involved in drafting submissions to Parliamentary Committees at both Westminster and Holyrood.

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