Patel & Ors v The Secretary of State for the Home Department (Rev 1)

Two alternative applications to the court are made by Manorama Patel, her husband and her daughter. Because the arguments are the same for all three applicants, I need only refer to Mrs Patel and I will call her “the Applicant” in this judgment. I will refer to the respondent to the applications as “the SSHD”.

The first application is for this court to grant permission to appeal the refusal of the Vice-President of the Upper Tribunal (Immigration and Asylum Chamber), (respectively “Judge Ockelton” and “the UT”) to grant permission to appeal a decision of the First Tier Tribunal (“the FTT”), when the applicant had applied to the UT for permission to appeal from the FTT out of time. That refusal of Judge Ockelton was made in a judgment given orally on 4 August 2014. The corrected transcript of the judgment was then “promulgated” on 19 August 2014.

The second, alternative, application, is made on the assumption that this court has no jurisdiction to consider the first application, because it is, in the statutory wording, an “excluded decision”. In essence the Applicant asks that the court reconstitutes itself as a Divisional Court and that the Divisional Court grants permission to bring Judicial Review proceedings of the UT’s refusal to grant permission to appeal to the Court of Appeal. In both cases, the applications are out of time.

Normally both these applications would have been dealt with by a single Lord Justice on the papers. However, this case has a long and complicated procedural history. When Beatson LJ considered the papers in June 2015 he directed that there should be an oral hearing before two Lords Justices. That hearing took place before us on 22 October 2015.

The applicant was born on 14 September 1985. On 18 November 2009 she was granted leave to enter to the UK as a Tier 4 (General) Student until 25 June 2011. Here husband was also granted leave to enter.

On 20 May 2011, the Applicant was granted leave to remain in the UK until 14 June 2014 as a Tier 4 Migrant in order to study at Cosmopolitan College. The Appellant had, in fact, ceased studying in April 2011 (ie before the date of her application), having become pregnant. Whether the Applicant actually intended to study at the College was in dispute below. Judge Ockelton concluded that the Applicant never intended to study at Cosmopolitan College because the applicant had found out that she was pregnant shortly before applying for leave to remain. In my view this issue is not relevant to the present applications.

On 8 August 2011, Cosmopolitan College’s sponsor licence was revoked.

On 2 March 2012, the SSHD wrote to the Applicant informing her that as a result of the revocation of Cosmopolitan College’s sponsor licence, the applicant ceased to meet the requirements of the Immigration Rules under which her leave to remain had been granted. The letter stated that the SSHD had decided, “in the exercise of her discretion” to restrict the duration of the Applicant’s leave to remain as a Tier 4 migrant so as to expire, under her current conditions, on 1 May 2012. The letter, which was headed “Points Based System-Variation of Leave” stated that the leave to remain was curtailed under Paragraph 323A(a) of the then extant Immigration Rules. The letter also stated that the Applicant had no right to appeal that decision, because section 82 of the Nationality and Immigration Act 2002 (“the 2002 Act”) did not provide a right of appeal where an applicant still had leave to remain in the UK so was entitled to stay here for the time-being.

This letter was not sent to the Applicant at her home address. It was sent to the address of consultants she had used to make the application for leave to remain. The Applicant has consistently stated that she never received the letter.

On 15 May 2012, that is two weeks after the Applicant’s leave to remain had expired, Immigration Officers went to her home address and served on her a decision by the SSHD to remove the Applicant, on the ground that she was by then an “overstayer”. This letter informed the Applicant that she had an “out of country” right of appeal against that decision, under section 82(1), section 82(2)(g) and section 92 of the 2002 Act. The Applicant told the Immigration Officers that she had not received the SSHD’s notice of 2 March 2012 curtailing her leave to remain. That notice was, accordingly, served on her personally on 15 May 2012.

Despite the statement in the letter of 15 May 2012 that the Applicant had only an “out of country” right of appeal, she sought to make an “in-country” appeal to the FTT, challenging the SSHD’s removal decision. That application was made on 17 May 2012. A hearing took place on 29 August 2012 and the FTT promulgated its decision on 12 September 2012. The FTT treated the appeal as one “against the decision of the Secretary of State to make a decision to remove [the Applicant, her husband and her daughter] under section 10 of the Immigration and Asylum Act 1999 following curtailment of their leave.”

On behalf of the SSHD it was argued that the FTT had no jurisdiction to entertain the appeal, so the FTT had to consider that preliminary point. The FTT concluded that it had no jurisdiction to hear the appeal because an appeal against a decision to remove an “overstayer” was an “immigration decision” of a type describe in section 82(2)(g) of the 2002 Act which did not give rise to an “in-country” right of appeal under section 92 of the 2002 Act, but only an “out of country” right of appeal after the “overstayer” had left the UK: (see para 21 of the FTT’s decision).

On 15 October 2012, that is outside the time allowed for lodging any appeal against the FTT’s decision, the Applicant sought permission from the FTT to appeal to the UT. There were two proposed grounds of appeal:

“(a)

The FTT erred in law in assuming that the Appellant’s leave was validly curtailed on 2 March 2012 and that she had no in-country right of appeal against the immigration decision taken on 15 May 2012;

(b)

The FTT erred in law in dismissing the appeal by following Nirula v FTT[2011] EWHC 3336 (Admin). This is because Nirulaitself is wrongly decided and should not have been followed.”

The application was considered by FTT Judge Grant on 23 October 2012. The heading of his order stated “permission to appeal is refused”. He gave two reasons. First, the application was out of time and there were no special circumstances that merited an extension of time so that “the application is therefore not admitted”. Secondly, even if the application had been in time, the Applicant had no “in country” right of appeal.

On 8 November 2012 the Applicant sought from the UT permission to appeal the FTT’s decision. This application was out of time. The Notice of Appeal was prepared by Mr Imtiaz Ali, a solicitor and the SRA Approved Manager and partner of Malik Law Chambers Solicitors. The grounds set out above were again advanced. In Section D of the Notice of Appeal (which is headed “Reasons for any delay”) the answer given to the question “did the First Tier Tribunal refuse to admit your application because it was late” was “No”. That is factually incorrect, as is clear from Judge Grant’s first reason for refusing permission. The second question: “Are you seeking to make this application outside the time limit that applies to you (see below)” was answered “Yes”, which was factually correct, because the application to the UT was out of time.

On 21 December 2012 UT Judge Eshun refused permission to appeal on the papers. Her written reasons stated that the decision to curtail leave was not an immigration decision within the meaning of Section 82(2)(e) of the 2002 Act because that subparagraph referred to variation to a person’s leave to enter or remain in the UK “…if when the variation takes the effect the person has no leave to enter or remain”; that was not so in the present case because the variation took place on 2 March 2012 at a time the Appellant still had leave to remain in the UK. Originally the applicant had had leave to remain to June 2014 and, by the variation, it had continued, albeit only until 1 May 2012. UT Judge Eshun made no reference in her reasons to the fact that both applications for permission to appeal to the UT (that to the FTT and that to the UT) had been made out of time. Judge Eshun did not state that she was extending time to make the application which she said that she was refusing.

The Applicant has stated that she received the UT’s refusal decision on 2 January 2013. She then sought permission from the Administrative Court to apply for judicial review of Judge Eshun’s refusal decision, but the application was not issued until 3 April 2013. Under CPR Part 54.7A(3) a claim form and supporting documents for an application for permission to apply for judicial review of a refusal by the Upper Tribunal of permission to appeal against a decision of the FTT (commonly called a “Cart JR application”) must be filed “no later than 16 days after the date on which notice of the Upper Tribunal’s decision was sent to the applicant”. At the latest, therefore, that application should have been made by 18 January 2013, so that it was about 2 ½ months late.

Carr J considered the application on the papers on 8 July 2013. She extended time for lodging the application until 3 April 2013 and she granted permission to apply for judicial review. In her “Observations”, Carr J stated:

“There is an arguable case, which has a reasonable prospect of success, that both the decision of the Upper Tribunal refusing permission to appeal and the decision of the First Tier Tribunal against which permission to appeal was sought are wrong in law. Specifically, it is arguable that a curtailment of leave falls within “variation of leave to enter or remain” as provided for in s 82 (2)(e) of the [2002 Act] and by reference to the absence of any express power of the Defendant to curtail leave under the Immigration Act 1971”.

Carr J did not refer to the fact that the earlier applications and appeals were out of time; nor did she extend the time in relation to them.

The SSHD did not request a substantive hearing of the judicial review application which Carr J gave permission to bring. Thus, in accordance with CPR Part 54.7A (9)(b) and (10), on 29 July 2013 Master Giddon made a final order quashing UT Judge Eshun’s refusal to grant permission to appeal to the UT. The question of whether permission to appeal to the UT from the FTT’s decision of 12 September 2012 should be given was then remitted back to the UT.

We were provided with a transcript of the hearing before Judge Ockelton. The Applicant was represented then, as now, by Mr Zane Malik of counsel. The SSHD was represented before Judge Ockelton by Mr G Saunders, a Home Office Presenting Officer. At the outset of the hearing, the judge stated that the first question that had to be dealt with was whether there should be permission to appeal the decision of the FTT. There was then a prolonged discussion between Judge Ockelton and the two advocates about the possible bases upon which an appeal might be argued. The judge intervened a great deal, in an attempt to identify and clarify the issues. At page 22 of the transcript (which is just over halfway through the whole), Judge Ockelton said:

“I will grant permission on the basis that it is arguable that the, that there was no service of any decision on 2 March [2012], no effective service, and therefore arguable that the only effective service of curtailment was on 15 May [2012], if then….and that it is also arguable that when the notice [was] served on 15 May personally [on the Applicant] it was ineffective and also that it is arguable that the FTT should have considered the exercise of discretion arising from point two. If I put it like that you understand what I mean, that is to say that it was (a) that there was an effective notice on 15 May [2012] which dealt with the exercise of discretion, which was a matter to be considered on the merits by the Tribunal. So that gives permission to appeal to to the Upper Tribunal”.

It is to be noted that Judge Ockelton did not, at that stage, specifically deal with the question of whether there had been compliance or not of Rule 21(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the UT Rules”, which are set out at [42] below), nor whether any extension of time should be granted. After he had made this ruling, Judge Ockelton then asked the advocates whether he should go on to deal with the substance of the appeal and both Mr Malik and Mr Saunders stated that they wished him to do so.

Mr Malik then started to argue the appeal, submitting that the UT should set aside the decision of the FTT and remake the decision. Mr Malik argued that the SSHD’s decision to curtail the Applicant’s leave to remain was only effective (if at all) as from the date of personal service on 15 May 2012. He relied upon a Home Office Policy, extant at the time, to the effect that if a Tier 4 Migrant has had leave to remain to study and it is to be curtailed because the educational institution has lost its Home Office licence, the existing permission to stay would be limited to 60 days, provided that the student had not been involved in a way that resulted in the institution losing its licence. The judge noted that the Applicant had apparently stopped attending Cosmopolitan College before the grant of leave to remain as a Tier 4 Migrant on 20 May 2011.

Page 31 of the transcript records the following exchange between Judge Ockelton and Mr Malik:

“Judge Ockelton: Well, I hear you on that. Now, we had better also deal with time, had we not? Because the application to the Upper Tribunal contained a fiction. It said that the FTT did not refuse to admit your application because it was late. The FTT’s decision says: “Having regard to the explanation and the grounds, I am not satisfied that there are special circumstances which merit an extension of time and the application is therefore not admitted. End of paragraph one.

Mr Malik: Yes, my answer would be this, that you’ve already given her leave, given permission to appeal.

Mr Ockelton: Yes but that was because you had not told me the facts, had you? I am perfectly prepared to go back on that ruling and, if necessary….now, why do you say that this is in time? Why was the application made saying that it was not not admitted as being out of time?”

There is then a discussion between the judge and Mr Malik on the timeliness of the application to the Administrative Court for permission to make the Cart JR application and what facts were, or were not, before Carr J when she granted an extension of time and permission to apply for judicial review and what facts had been presented to Judge Ockelton before he made the ruling set out at [21] above.

Having heard argument from Mr Malik, Judge Ockelton gave his judgment orally. The first paragraph of the transcript, as promulgated on 19 August 2014, states:

“I have before me an application for permission to appeal to this Tribunal. It is an application which I had thought I had granted earlier in the hearing today, but that was before a number of difficulties became apparent. In particular, it appears, for reasons that I shall set out in a moment, that the application for permission is not competent”.

The judge then set out the background facts and the history of the proceedings to date. He recited the erroneous statement in Section D of the Notice of Appeal to the UT, referred to in [15] above and said that the statement was “not correct”. The judge then referred to Rule 21(7) the UT Rules.

The judge remarked (at paragraph 7 of his promulgated judgment) that the UT judge who dealt with the application for permission, Judge Eshun, did not make any decision on the extension of time for the application to the UT, nor did she allude to the matters arising from the FTT’s decision that the application for permission to appeal to the UT was “not admitted”. Judge Ockelton said that she had refused permission to appeal to the UT on the merits.

Judge Ockelton then referred to the Cart JR application that was dealt with by Carr J. The judge commented (at paragraph 7 of his judgment):

“There was an application for the extension of time for the purposes of judicial review and Carr J who granted permission extended time indicating that the Section 7 of the claim form provided little specific detail as to the reason and the time line behind the delay but that there were matters in terms of the merits which she thought might justify the extension of time. However, it appears clear that although it might have been possible for her to discover, if she looked far enough back in the papers, there was no proper clear indication to her that the previous application shad been made out of time and indeed that the Upper Tribunal application, the decision on which she was asked to give permission to judicially review, was one which had in fact been made both our of time itself and not in compliance with the Rules.”

In the concluding paragraph of his judgment, (paragraph 10), Judge Ockelton stated:

“It seems to me that there is no good reason either for extending time for the application to the Upper Tribunal or for condoning the failure to deal with the consequences of the decision of the First-tier Tribunal. I am required only to admit the application if I consider that it is in the interests of justice to do so…..But in considering where the interests of justice lie, I remind myself that the appellant is seeking to challenge the curtailment of leave to be in the country for specific purposes which she never undertook; and that she is a person who has consistently, through the last three applications at least, failed to seek in time the remedies that she might have had available from the machinery of justice. It seems to me that there is no injustice at all to her in refusing, at this late stage, an application made both without compliance with the rules and itself out of time which would, if it succeeded, only enable her to argue about the merits of continuing a period of leave which she had obtained in circumstances which were not the circumstances which applied at the time the leave was granted. My decision therefore is that this application is not admitted.”

I shall refer to the first ruling of Judge Ockelton, granting permission to appeal, as “the first ruling” and the subsequent one, refusing permission, as “the second ruling”. I use the word “ruling” in order not to prejudge whether either is a “decision” for the purposes of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”) and the UT Rules.

By a letter dated 19 August 2014 (the same date as the promulgation of the decision under challenge) but not received by the Upper Tribunal until 13 October 2014, the Applicant sought permission to appeal to the Court of Appeal. Confusingly, this letter sought permission to appeal from the UT’s decision of 19 May 2014, which (as Mr Malik acknowledged) is a mistake for 19 August 2014. The letter asserted (in paragraph 3) that the application was out of time because the Applicant was without funds and was unable to secure funding for the application. The letter continued that it was “only yesterday [viz. 18 August 2014], that [the Applicant] was able to give instruction to us to file this application”. That statement is not as bizarre is it might seem because, of course, Judge Ockelton had delivered his oral judgment referred to in [29] above on 4 August and so the Applicant could then have immediately thereafter started the process to secure funding. Mr Imtiaz Ali, a partner of the Applicant’s solicitors, has made a sworn statement that was before this court, in which he states that the letter was drafted and sent on 19 August 2014, but, because it was not received by the UT, it was resent on 10 October 2014.

On 10 March 2015, Judge Ockelton refused the Applicant’s application for permission to appeal to the Court of Appeal. This order was sent to the Applicant on 16 March 2015. Judge Ockelton stated that the decision that the Applicant was seeking to appeal was a refusal of permission to appeal and there was no right of appeal to the Court of Appeal against such a decision: see paragraph 2. In relation to the judge’s change of mind over whether to grant permission, he stated:

“The apparent grant of permission at an earlier point of the hearing was, as the decision as a whole shows, inappropriate. The claimant and [her] representatives had failed to tell the Tribunal (as they had failed to tell Carr J) that the application was out of time; as it was out of time permission could only be granted if time was extended, which it had not been.”

On 15 April 2015, the Applicant issued an Appellant’s Notice, which was apparently prepared by Mr Imtiaz Ali. In Section 5 it states that the order from which the applicant sought permission to appeal was “the decision of the Administrative Court to refuse the applicant’s application for permission to apply for Judicial Review”. That is obviously inaccurate. In answer to the question: “have you lodged this notice with the court in time” the “Yes” box has been ticked. That must also be wrong. There is no dispute that if the claim is correctly characterised as an application for permission to appeal, then the Appellant’s Notice should have been filed within 3 weeks of Judge Ockelton’s decision of 10 March 2015: see CPR Part 52.5(2).

Three grounds of appeal were advanced in the Appellant’s Grounds of Appeal which was lodged with the Notice of Appeal. The first ground was that the UT had no jurisdiction to reconsider and reverse its decision to grant permission to appeal. The second was that the UT misconstrued Rule 21(7) of the UT Rules in holding that the applicant’s application for permission to appeal to itself was “not competent”. The third ground was that the UT erred in law in taking a point as to delay and in refusing to admit the application of permission to appeal to itself, taking account of the history of the matter, which was there set out.

On 1 May 2015, Master Meacher wrote to the Appellant’s solicitor notifying them of a direction that the Court did not have jurisdiction to entertain the application seeking permission to appeal the decision of the UT refusing permission to appeal.

The applicant served a skeleton argument, prepared by Mr Malik, on 27 May 2015. At paragraph 9 of the skeleton, Mr Malik asked the court to consider the issues in two ways. First, as “an appeal” from the UT’s decision. The premise for this approach was that the UT could not retract the grant of permission to appeal that had been made in the “first ruling” during the hearing of 4 August 2014, therefore there would be a right of appeal on a point of law arising from a decision of the UT, pursuant to section 13(1) of the 2007 Act. If that were not accepted, Mr Malik invited the court to reconstitute itself as a Divisional Court and to grant an application for permission to apply for Judicial Review of the UT’s “second ruling”, with the substantive hearing to follow immediately after if permission were granted. The basis for the alternative, application (for which no formal paperwork had, or has ever, been filed) was that the Divisional Court had a “supervisory” role over the UT and there were a number of cases where the Court of Appeal had sat as a Divisional Court at the same time as sitting as a Court of Appeal in case there were jurisdictional difficulties regarding the latter’s appellate role. (Footnote: ¹) On 27 May 2015 the Applicant filed a skeleton argument in support of the application for permission to appeal/application for permission to apply for judicial review.

On 29 May 2015, the Applicant’s solicitors responded to Master Meacher’s letter, asserting that the Court of Appeal did have jurisdiction. In a letter dated 25 June 2015, the Appellant’s solicitors were informed that Beatson LJ had considered the papers and had directed as follows:

“The application is to be listed for directions to be given as to whether the Court of Appeal has jurisdiction to entertain an appeal against the refusal of permission to appeal by the UTIAC from the decision of the FTT in the present case where the applicant applied out of time to the UTIAC. This will involve consideration of the matters raised in the applicant’s skeleton argument. The first is whether, having granted permission, the UTIAC had jurisdiction to revisit that decision at a later stage on the ground that it had not been told that the application was out of time and, if it did not, what remedy lies. The second is whether on these facts, there is jurisdiction for the Court of Appeal to proceed by way of judicial review as contemplated by Mirza [2011] EWCA Civ 159 and Sandeep Singh[2014] EWCA Civ 438.

If it is decided that there is jurisdiction by either route the constitution can consider whether by grant of permission to appeal/apply for judicial review and, if there is time, deal with the substantive points. Alternatively the substantive points can be considered at a later hearing.”

That was the basis of the hearing before us on 22 October 2015.

The relevant provisions of sections 82 and 92 of the 2002 Act, in the terms in force between 2008 and 2013, state:

“82 Right of appeal: general

(1)

Where an immigration decision is made in respect of a person he may appeal [to the Tribunal].

The relevant provisions of sections 10, 11 and 13 of the 2007 Act (in the terms in force from 2010 to date) state:

“10 Review of decision of Upper Tribunal

(1)

The Upper Tribunal may review a decision made by it on a matter in a case, other than a decision that is an excluded decision for the purposes of section 13(1) (but see subsection (7)).

(2)

The Upper Tribunal's power under subsection (1) in relation to a decision is exercisable–

(a)

of its own initiative, or

(b)

on application by a person who for the purposes of section 13(2) has a right of appeal in respect of the decision.

Tribunal Procedure Rules may–

Right to appeal to Upper Tribunal

Any party to a case has a right of appeal, subject to subsection (8).

Permission (or leave) may be given by–

Right to appeal to Court of Appeal etc.

Any party to a case has a right of appeal, subject to subsection (14).

Permission (or leave) may be given by–

Rules 21(2), (3) and (7), 22(1) and (2), 40(1), (2), and (4) of the UT Rules in force as at 4 and 19 August 2014, provide:

“Application to the Upper Tribunal for permission to appeal

21

(2) A person may apply to the Upper Tribunal for permission to appeal to

the UpperTribunal against a decision of another tribunal only if–

(a)

they have made an application for permission to appeal to the tribunal which made the decision challenged; and

(b)

that application has been refused or has not been admitted [or has been granted only on limited grounds].

(3)

An application for permission to appeal must be made in writing and

received by the Upper Tribunal no later than–

(a)

in the case of an application under section 4 of the Safeguarding Vulnerable Groups Act 2006, 3 months after the date on which written notice of the decision being challenged was sent to the appellant;

(b)

otherwise, a month after the date on which the tribunal that made the decision under challenge sent notice of its refusal of permission to appeal, or refusal to admit the application for permission to appeal, to the appellant.

…………………

(7)

If the appellant makes an application to the Upper Tribunal for permission to appeal against the decision of another tribunal, and that other tribunal refused to admit the appellant’s application for permission to appeal because the application for permission or for a written statement of reasons was not made in time–

(a)

the application to the Upper Tribunal for permission to appeal must include the reason why the application to the other tribunal for permission to appeal or for a written statement of reasons, as the case may be, was not made in time; and

(b)

the Upper Tribunal must only admit the application if the Upper Tribunal considers that it is in the interests of justice for it to do so.

Mr Zane Malik, for the applicant, advanced four submissions. The first was that the UT had no power to reverse the grant of permission to appeal that was given orally by Judge Ockelton at the half-way stage of the hearing on 4 August 2014. For this proposition, Mr Malik relied on the wording of sections 10, 11 and 13 of the 2007 Act. He argued that the first ruling, granting permission to appeal to the UT, was an “excluded decision” within section 13(1) and that, by section 10(1), the UT could not “review” it. The second proposition arose only if the court was against Mr Malik on the first. He submitted that if the UT had the power to reverse the first ruling, granting permission to appeal, then Judge Ockelton erred in law in his second ruling, refusing permission to appeal. That was for two reasons: (i) he misconstrued Rule 21(7) of the UT Rules; and (ii) he failed to have proper regard to the overriding objective, the litigation history and other material considerations. The third proposition was that this court should entertain the challenge to Judge Ockelton’s second ruling not to grant permission to appeal, either as a Court of Appeal, or by sitting as a Divisional Court and granting permission to bring judicial review proceedings and then by quashing that ruling as being made without jurisdiction or wrong in law. The fourth proposition is related to the second part of the third. Mr Malik submitted that this court should not decline relief in the exercise of its supervisory jurisdiction (as a Divisional Court) on the ground that there had been delay on the part of the Applicant.

Mr Andrew Sharland, for the SSHD, submitted that Mr Malik’s first proposition was wrong in law, for two reasons. First, there was a general power of judges to reconsider decisions or rulings before a formal order had been made. In this regard Mr Sharland drew our attention to Rule 22(2)(a) of the UT Rules which stipulates that the UT must send written notice of the grant of permission to appeal to the parties. He submitted that the “decision” was not effective until that notice had been sent. He also referred us to the decision of the Supreme Court in In re L and another, (Footnote: ²)in which it confirmed the general rule that a judge of the High Court (and County Court) has the power to change her mind and revise or vary a decision at any time before the order of the court embodying the decision has been drawn up and perfected: see [19] of Baroness Hale’s judgment with which the other Justices agreed. Secondly, Mr Sharland submitted that the reconsideration by Judge Ockelton after his first ruling was not a “review” for the purposes of section 10(1) of the 2007 Act.

We heard argument from counsel on the first of Mr Malik’s propositions. We indicated that we would accept that argument. (Footnote: ³) In those circumstances, Mr Malik accepted that he did not need to elaborate on his second proposition. We therefore heard Mr Sharland on the third and fourth of Mr Malik’s propositions. Mr Sharland submitted that the second ruling constituted an “excluded decision” for the purposes of section 13(1) of the 2007 Act, so that this court had no jurisdiction to consider it in its capacity as a Court of Appeal. He submitted that the second ruling, being a ruling of UT which was then embodied in the UT’s determination that was promulgated on 19 August 2014, must therefore stand unless it could be challenged by way of judicial review. He accepted that this was theoretically possible, but he submitted that the correct mode of challenge was by way of a Cart JR, under the procedure laid down by CPR Pt 54.7A. The application for permission to bring Cart JR proceedings should therefore have been brought within 16 days of the promulgation on 19 August 2014. If the Notice of Appeal of 15 April 2015 is taken as being the application for permission to bring Cart JR proceedings, it was 8 months out of time. There is no explanation for the delay. Moreover, the Applicant should be made to go through the formality of lodging a claim form under CPR Pt 54.7A and paying the requisite fee.In this regard Mr Sharland referred us to a decision of Ouseley J in R (on the application of Hussain) v SSHD. (Footnote: ⁴)

In my view the following issues have to be considered:

The first ruling of Judge Ockelton was a “decision” in the non-technical sense; he plainly had concluded that the Applicant should be given permission to appeal to the UT and he said so clearly in open court to both parties. In doing so he did not then appear to consider issues of delay or Rule 21(7) of the UT Rules. Having granted permission, the judge then started to go on to hear the substantive appeal. The issue is whether that first ruling was an “excluded decision” in the technical sense given in sections 10, 11 and 13 of the 2007 Act.

It is clear from the wording of section 13(8)(c) taken with section 11(4)(b) of the 2007 Act that when the UT grants or refuses an application for permission to appeal, it is, in principle, making a “decision” within the meaning of those sections. Therefore, given the terms of section 13(1), 13(8)(c) and 11(4)(b) of the 2007 Act, it is also clear that a “decision” of the UT to grant permission to appeal constitutes an “excluded decision”. Once an “excluded decision” is made by the UT, then the UT has no power to “review” it, by virtue of the terms of section 10(1) of the 2007 Act. To my mind, the word “review” in section 10(1) is to be given a broad construction. This is clear from section 10(4) and (5) which set out what the UT can do if it reviews a decision. In the light of the review it can correct accidental errors in the decision or a record of it; amend the reasons given for a decision, or set the decision aside, in which case the UT must then remake the decision. In short, given the context, the plain and ordinary meaning of “review” embraces any revision, variation or reversal of a “decision” once made. I would reject Mr Sharland’s argument to the contrary.

The only question, therefore, is whether the first ruling of Judge Ockelton constituted an irrevocable “excluded decision” at the moment that he pronounced it, or whether there was some further process that had to be concluded before it became irrevocable and so incapable of “review”, within the meaning of section 10(1) of the 2007 Act. There is nothing in the 2007 Act itself which requires any further formal step to be taken before an “excluded decision” becomes incapable of “review” in accordance with section 10(1) of that Act. However, Mr Sharland’s argument is that the effect of Rule 22(2)(a) of the UT Rules is to require a further formal step in the form of written notice being given to the parties. It is argued that until that step had been taken, no irrevocable “ excluded decision” (within the terms of the 2007 Act) had been made. The consequence, in Mr Sharland’s submission, is that UT judges will be in the same position as judges in the High Court or County Court, as stated by Baroness Hale in in re L at [16], viz. “it has long been the law that a judge is entitled to reverse his decision at any time before his order is drawn up and perfected”. Mr Sharland argued that because no written notice of the grant of permission to appeal had been given to the parties pursuant to Rule 22(2)(a), it is as if that decision has not been “drawn up and perfected”, so that the judge was free to reverse it.

The rule that a judge of the High Court or County Court is entitled to reverse his decision at any time before his order is drawn up and perfected is a judge-made rule and it goes back a long way. The rule that a judge cannot reverse his decision after the order had been drawn up and perfected, is also a judge-made rule, but is more modern. It was stated by the relatively new Court of Appeal in In re St Nazaire Company (Footnote: ⁵) to be the corollary of the creation of the appellate jurisdiction of the new Court of Appeal by the Judicature Acts of 1873 and 1875. This latter judge-made rule has been modified, to a limited extent, by CPR Pt 3.1(7). However, I think that it is important to emphasise that in the High Court and the County Court generally (there may be exceptions in some family cases) the important document is the order of the judge, not the judgment, which, technically, contains the reasons why a decision, set out in the order, has been made. An appeal is one against an order, not the judgment, of a judge. That is why judges are entitled to alter their reasons or even their conclusions in their judgments after they have been given, provided that is done before the order embodying the conclusion has been drawn up and perfected.

Does Rule 22(2)(a) of the UT Rules have the effect that there is no “excluded decision” of the purposes of section 10(1) until written notice has been given to the parties, so that the judge can reverse his “decision” before that step has been taken? In my view it does not. First of all, the meaning of “decision” must come from the 2007 Act. There is nothing in it that we were shown which would qualify the word’s natural meaning of “coming to a determination or resolution with regard to any point or course of action” or “a resolution or conclusion arrived at”. (Footnote: ⁶) There is nothing in the 2007 Act that defines or qualifies when a “decision” takes effect. There is nothing in the 2007 Act that states that the time when a “decision” takes effect will be the subject of procedural rules. The statutory wording in the 2007 Act must take precedence over any judge-made rule, unless that rule is saved by the statute itself. In this case it is not. Therefore, in my view, on the correct construction of the 2007 Act, the “decision” must be made and have effect when it is uttered by the UT judge.

The purpose of Rule 22(2)(a) is to ensure that the parties have written notice of a decision that has been made. Frequently, decisions on whether to grant or refuse permission to appeal will be dealt with by the UT judge in private on the papers. So, obviously, the parties must be given notice of the paper decision. Rule 22(2)(a) makes it an express obligation of the UT to do so. But it does not say that a “decision” will only have effect, or only becomes irrevocable or “unreviewable” once written notice to the parties has been given. The UT can also give a decision orally, as Rule 40(1) provides. There can be no doubt that “decision” in this context includes a decision to grant permission to appeal. If the UT does give a decision orally then, (as the Rules were drafted in August 2014), provided that the decision is not one that finally disposed of all issues in the proceedings or of a preliminary issue dealt with following a direction under Rule 5(3)(e), the UT may (my emphasis) provide written reasons for the decision. Written reasons are not compulsory. Rule 40(1) and (4) are compatible with Rule 22(2)(a), because the latter provision only requires that written notice be given to the parties. Again, Rule 40 does not indicate that an oral “decision” only comes into effect, or only becomes irrevocable or “unreviewable” once written notice of it has been given to the parties.

Therefore, I conclude that once Judge Ockelton had uttered the decision to grant permission to appeal, he could not, contrary to his view, reconsider it and reverse it. This is so even if he subsequently thought that he had not dealt sufficiently with the issue of delay, extension of time or compliance with Rule 21(7) of the UT Rules. Having made his decision, he should have gone on to consider the substantive appeal.

Judge Ockelton purported to make a further determination and gave reasons for it which were promulgated. It purported to reverse the first ruling and then to refuse permission to appeal. Ostensibly, this second ruling is also a “decision” within the terms of section 10(1) of the 2007 Act. Like all orders of a court or tribunal, it must remain effective until challenged and set aside, even if it was made without the court or tribunal having jurisdiction to do so. If I am correct about the nature of the first ruling of Judge Ockelton, then he had no power to make the second: he had exercised his jurisdiction to grant permission to appeal. But, having made it, I think that the second ruling must continue to exist unless and until set aside by a court having the power to do so.

Mr Malik accepted (perhaps reluctantly) that the second ruling, even if made without jurisdiction, had to be characterised as an “excluded decision” within the terms of section 10(1) of the 2007 Act. Accordingly, he had to accept that there was no right to appeal it, by virtue of the terms of section 13(1) of the 2007 Act. Therefore the only way it could be challenged was by some form of judicial review.

There was argument about the nature of the judicial review challenge because of the different time limits that applied: 16 days after the date of notification of the UT’s decision if the proper procedure was by way of Cart JR, but “promptly and in any event not later than 3 months after the grounds to make the claim first arose” (CPR Pt 54.5(1)) if a standard form of judicial review. The answer to this conundrum depends on the correct characterisation of the ground for making the judicial review claim. The Cart JR procedure was created because the 2007 Act prohibits any right of appeal from a decision of the UT to refuse permission to appeal a decision of the FTT. Although that was the effect of Judge Ockelton’s second ruling, I think that the “ground of the claim” of the Applicant in this case is the fact that Judge Ockelton made the second ruling at all. He purported to review or reverse his first ruling; it is the fact that the judge took that action which is the “ground of the claim”. In short, it is the allegation that the judge acted without jurisdiction.

Accordingly, I conclude that if any challenge is to be made to the second ruling of Judge Ockelton, it must be by way of judicial review, but the correct regime for making the claim is that under CPR Pt 54.1 and 54.5, not that under CPR Pt 54.7A. Thus, any claim for judicial review of the second ruling should have been made promptly, but in any event not later than three months from the date of promulgation of Judge Ockelton’s second decision and reasons on 19 August 2014.

In fact, no formal judicial review claim form challenging the second ruling has ever been issued. Mr Malik argued that it was not necessary to do so. He relied upon the way the skeleton argument had been drafted and the fact that the Court of Appeal had sat in a dual capacity in comparable cases such as Mirza v SSHD, (Footnote: ⁷)and Sandip Singh v SSHD. (Footnote: ⁸)Neither of those cases deal directly with the issue of whether it is, at some stage, necessary for a judicial review application formally to be made. In my view it should be. In that way the court can see the precise grounds on which the judicial review claim is made and it can also see, in a formal document, the points on extension of time, if relevant. Further, there is no reason why an Applicant should be able to avoid paying the necessary fee to bring a judicial review claim.

Mr Malik urged this court, sitting as a Divisional Court, to grant permission to bring judicial review proceedings; it should then allow the claim and quash the second ruling of Judge Ockelton. He submitted that matter should then be remitted to the UT to deal with the substantive appeal (for which Judge Ockelton had given permission to appeal in his first ruling) from the FTT’s decision promulgated on 12 September 2012.

If I am right in my analysis so far, the second ruling of Judge Ockelton was made without jurisdiction to do so. Prima facie, therefore, his determination and reasons of 19 August 2014 should be quashed. If they are, then the first ruling granting the Applicant permission to appeal from the FTT’s decision promulgated on 12 September 2012 would be re-instated. That would mean that the case would have to be remitted to the UT to hear the appeal from the FTT’s decision.

Mr Sharland submitted that in all the circumstances of this case, in particular given the repeated delays and other errors in the procedural history of the case, the court should not exercise its discretion to grant permission to bring judicial review proceedings out of time or, alternatively, it should not grant any substantive relief. Mr Malik accepted that there has been a history of delays, but submitted that there are explanations and argued that the court should give permission and grant the relief because of underlying merits of the Applicant’s case.

There have been delays at every stage of this case since the decision of the FTT on 12 September 2012. To recap: the application to the FTT of 15 October 2012 for permission to appeal to the UT was out of time. The application to the UT dated 8 November 2012 for permission to appeal the FTT’s decision, was out of time. It also contained the mis-statement (in Section D) that the FTT had not refused to admit the application for permission to appeal because it was late, whereas that was Judge Grant’s first reason for the FTT’s refusal dated 23 October 2012. Mr Imtiaz Ali says, in his sworn witness statement, that he viewed Judge Grant’s decision as one on the merits not one refusing an extension of time. I find that hard to credit but if that was his view, it is plainly mistaken, even if honestly held. The application for Cart JR dated 3 April 2013 was out of time, although Carr J extended time. As Judge Ockelton noted, Section 7 of the Judicial Review claim form did not reveal the fact that there had been chronic delays at all stages before the judicial review application. There is a dispute about whether or when the Applicant’s letter of 19 August 2014 seeking permission to appeal to the Court of Appeal was ever received by the UT. But the letter itself says that the application is out of time and seeks an extension of time, which Judge Ockelton refused. No judicial review application to quash Judge Ockelton’s second ruling has been issued. If that application is taken as being subsumed in the Appellant’s Notice issued on 15 April 2015, as Mr Malik submitted it should, then that would make it nearly five months out of time.

Mr Malik recognised that there had been a long history of delays, but he submitted that there were several matters which went to counter that fact. First, Carr J had extended time to bring the Cart JR proceedings. That is so, but it seems to me that it was a generous decision on her part. Secondly, Mr Malik notes that neither the UT nor the SSHD sought to set aside Carr J’s order granting permission and they permitted the automatic provisions of CPR Pt 54.7A(9) to operate, so that UT Judge Eshun’s order was set aside. That is also true, but it does not follow, as Mr Malik asserted, that the High Court was satisfied that the previous decision of the UT to refuse permission to appeal was wrong in law. That was neither argued out nor decided. Thirdly, it is suggested that Judge Eshun herself, when making her decision of 21 December 2012 must, implicitly, have granted an extension of time in which to appeal, even if she then refused permission on the merits. It is true that Judge Eshun’s reasons concentrate on the underlying merits of the case, but it is not possible to conclude from the wording that she implicitly granted an extension. The last point, that Judge Eshun did consider the merits of an appeal from the FTT, takes the matter no further forward.

In the last paragraph of Mr Imtiaz Ali’s sworn witness statement he states that he cannot make applications without either instructions or funding and points out, correctly in my view, that this area of the law is so complicated that it is very difficult for litigants to try and pursue their cases without legal assistance. However, as Mr Malik accepted, the Court of Appeal has stated, in R(Hysaj) v SSHD, (Footnote: ⁹)that the generally strict approach of the court to applications for extensions of time apply equally to public law claims as to private law cases, although the fact that a public law claim may raise important issues for the public at large is a factor to be taken into account when seeing whether there is a good reason for extending time. In the same case, the court also stated that shortage of funds does not provide a good reason for delay. (Footnote: ¹⁰)

Mr Malik accepted that these successive delays in the Applicant’s case create difficulties for the Applicant in both seeking permission and in relation to the question of whether relief should be granted under substantive claim for judicial review. But he submitted that the overall merits of her claim to be able to appeal the original FTT decision required that Judge Ockelton’s second ruling be quashed and the matter remitted to the UT so that it could consider again whether permission to appeal out of time should be granted. Mr Malik’s submissions on “the merits” of the substantive appeal were, in summary: (i) the SSHD’s decision of 2 March 2012 to vary the Applicant’s leave to remain from June 2014 to 1 May 2012 only took effect on 15 May 2012 when it was served by the Immigration Officers who arrived at the Applicant’s house that day. (ii) Because the date to which the leave had been varied (1 May 2012) had passed by then, the effect of the decision was that when the variation took effect (on 15 May 2012), the person concerned had no leave to enter or remain in the UK. (iii) In that circumstance, the “immigration decision” of 2 March 2012 was one within section 82(2)(e) of the 2002 Act, which, by virtue of section 92(2) of that Act, gave the person concerned an “in-country” right of appeal from the decision to the FTT. (iv) Therefore the FTT erred in law in stating that it had no jurisdiction to consider an appeal.

We did not hear argument on these “jurisdictional merits”. Like Judge Ockelton, we accepted that the points are not fanciful and are reasonably arguable. I would go further and say that together they constitute an important point of principle, which, all other things being equal, should be considered by the UT. But even that does not deal with the underlying case of the Applicant, which is that the SSHD should not have curtailed or varied the leave to remain that had been granted in 2011. We heard no argument on that issue.

Section 31(6) of the Senior Courts Act 1981 provides:

“Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant (a) leave for the making of an application or (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of any person or would be detrimental to good administration”.

There has been “undue delay” in this case, because even on the most favourable view, the Notice of Appeal of 15 April 2015 was some 5 months late. Accordingly, this court (sitting as a Divisional Court) can refuse to grant permission or refuse to grant the relief of quashing the second ruling if it considers that to do so would be likely to cause substantial hardship to, or substantially prejudice the rights of any person or would be detrimental to good administration. In my view, the first two of those matters do not apply in this case. The SSHD will not suffer substantial hardship if permission were given or the relief granted. There might be prejudice to the SSHD’s rights if there were a burden on her to prove that the letter of 2 March 2012 was actually received by the Applicant, but the SSHD can rely upon the fact it was sent and the fact that she had no notice of a change of consultant by the Applicant. I do not regard that as “substantial prejudice”, especially as that issue only goes to the question of whether the FTT had jurisdiction to hear an “in-country” appeal, not the underlying merits of the appeal itself.

Would the grant of relief be detrimental to “good administration”? The fact is that the Applicant and her family are still here in the UK and their cases have been pending since 2012. If there is detriment, it is insufficient, in my view, to lead to the refusal to grant permission or the relief sought. Accordingly, despite the history of successive delays, failures to comply with time limits and deficiencies in completing formalities in one application form at least, I have concluded that, in the very unusual circumstances of this case, this court should: (i) extend time in which to make the application for permission to bring judicial review proceedings to quash the second ruling of Judge Ockelton; (ii) grant permission to bring judicial review proceedings, on condition that a claim form is issued and served within 14 days of this judgment being handed down; and (iii) grant the relief sought, viz to quash the second ruling of Judge Ockelton and remit the matter to the UT to hear the appeal from the FTT’s decision promulgated on 12 September 2012.

The principal reasons for doing so are that the second ruling of Judge Ockelton was made without jurisdiction and so should not be allowed to stand and that the merits of the underlying appeal, which concern public law issues, are reasonably arguable and raise an important point of principle. Those factors outweigh the delay and other errors which have occurred. However, following on what I have said at [58] above, I would require an undertaking from Mr Malik to lodge a judicial review claim form within 14 days of this judgment being formally handed down as a condition precedent to the relief being granted. That undertaking should be given before this judgment is formally handed down.

Judge Ockelton’s first ruling constituted a “decision” within the meaning of sections 10, 11 and 13 of the 2007 Act. Because it concerned an application for permission to appeal to the UT, it was an “excluded decision” within the meaning of sections 13(1), 13(8)(c) and 11(4)(b) of the 2007 Act. Once that “excluded decision” had been taken, it could not be the subject of a “review”: see section 10(1) of the 2007 Act. Therefore Judge Ockelton had no jurisdiction to make his second ruling which set aside his first ruling. However, as that decision was made and promulgated, it remains extant unless quashed. The Divisional Court, exercising a supervisory role over the UT, has the power to consider a claim for judicial review of that second ruling. Despite the fact that there have been a series of delays and other irregularities in the procedures on behalf of the Applicant and despite the fact that there was “undue delay” in bringing the present claim for judicial review, this Court, acting as a Divisional Court, should grant an extension of time in which to seek permission to bring judicial review proceedings (of the “normal” type, not the Cart JR type) of the second ruling. Permission should be granted and the judicial review claim permitted so that the second ruling of Judge Ockelton should be quashed. The matter must be remitted to the UT to hear the appeal from the decision of the FTT promulgated on 12 September 2012, based upon the grant of permission given by Judge Ockelton in his “first ruling” at the hearing on 4 August 2014.

I agree.