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Upper Tribunal time limits: clock starts to run when written decisions are *sent*

Upper Tribunal time limits: clock starts to run when written decisions are *sent*

Yet another procedural change to update you on. This one took effect on 14 May 2018 and is about the time limit for appeals to the Upper Tribunal. Basically the clock starts ticking on the date that written reasons are sent out — not the date on which they are received.

This is the effect of the Tribunal Procedure (Amendment) Rules 2018 (2018 No. 511 (L. 7)). They amend Rule 33 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (SI 2014 No. 2604 (L. 31)). Rule 33 originally ran as follows:

33.—(1) A party seeking permission to appeal to the Upper Tribunal must make a written application to the Tribunal for permission to appeal.

(2) Subject to paragraph (3), an application under paragraph (1) must be provided to the Tribunal so that it is received no later than 14 days after the date on which the party making the application was provided with written reasons for the decision.

(3) Where an appellant is outside the United Kingdom, an application to the Tribunal under paragraph (1) must be provided to the Tribunal so that it is received no later than 28 days after the date on which the party making the application was provided with written reasons for the decision.

The amendment changes provided and provided with to sent and sent to in each subparagraph. In the words of the accompanying explanatory note, this is to “clarify that the time period for an application to be sent to the tribunal is calculated by reference to the date on which the written reasons for the decision are sent to the party making the application”.

So, whatever the position before, it is now clear that an in-country appellant has 14 days, from the day on which written decisions are put in the post, to appeal to the Upper Tribunal. An out-of-country applicant has 28 days to appeal from the date of postage.

This mirrors the equivalent change that was made to the time limits for appeals to the First-tier Tribunal, back in 2014. The old version of that procedure rule had referred to the date on which you were “served with notice of the decision”. The replacement — Rule 19 — set the time running when you were “sent the notice of the decision”.

Natalie Wilkins wrote on this blog at the time that change was made that “decisions delayed in the post may therefore result in a scramble to get a notice of appeal lodged”. That was exactly what happened: the Home Office started to send decisions by second class post and the Immigration Law Practitioners’ Association wrote to complain about it.

What is sauce for the First-tier Tribunal is sauce for the Upper: the fear now is that written reasons getting held up in the mail will leave appellants with very little time to get their appeal in to the higher tribunal. The change makes the approach to time limits the same for both tribunals — Rule 19 and Rule 33 are now the same in terms of when the clock starts. But this consistency has been achieved by levelling down, from an appellant’s perspective.

The amending statutory instrument was laid on 23 April 2018, to come into force 21 days later. That is to say, the changes took effect on 14 May 2018 — so our coverage of it is a little late. Ironic, really.

 

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