The Secretary of State for the Home Department v Begum

Introduction

On 17 February 2016 we heard an application by the appellant for an extension of time for filing an Appellant’s Notice in this case. At the conclusion of the hearing we announced our decision that the application for an extension was refused and that the reasons for our decision would be delivered at a later date. What follows are my reasons for reaching the decision that we did.

The application for the extension of time had been listed with a direction that the appeal should follow for hearing if the application was granted. In the circumstances the appeal fell away with the refusal of the extension.

The relevant time limit for appeal from the Upper Tribunal to this court was 28 days from the date on which the Upper Tribunal’s decision on permission to appeal was sent to the appellant: CPR Practice Direction 52D, paragraph 3.3. In this case the Upper Tribunal granted permission for the proposed second appeal on 5 June 2014. That decision was sent to the respondent on 29 July 2014. Thus, time for filing the Appellant’s Notice expired on or about 26 August 2014. The Appellant’s Notice was not filed until 27 November 2014, a delay of about 3 months.

The appellant applied for the necessary extension time in section 9 of the Appellant’s Notice. In argument before us Mr Thomann for the appellant pointed out that the respondent had failed thereafter to raise objections to the application for an extension of time (properly so made in the Appellant’s Notice) within the 7 day time limit imposed by Practice Direction 52C 4(3)(ii) also that the objection to an extension was only taken by the respondent for the first time in a skeleton argument of 9 February 2016, only a week before the hearing. That skeleton argument was, therefore, filed long outside the relevant time frame following notification of listing, which in this case had occurred on or about 13 May 2015: see Practice Direction 52C paragraph 21, Timetable Part 1.

The explanation (such as it is) for the delay in filing the Appellant’s Notice was stated in the following terms in section 9 of the Notice:

“Due to an administrative oversight the SSHD regrettably failed to lodge her Appellant’s Notice as per the deadline stipulated by Rule CPR Direction 52D 3.3 (2). The Court of Appeal’s permission is respectfully sought to grant an extension of time in filing this notice. In light of permission to appeal already being granted in the lower courts, it is respectfully submitted that the Respondent has not suffered any prejudice in this matter due to the delay of the filing of the Appellant’s notice. Nor has there been more than de-minimis prejudice to the interest of justice.”

Before addressing the substance of the application for the extension, I will set out a short summary of the background to the case to put the matter in context.

The respondent is a Pakistani national now aged 70. She had lived in Pakistan for most of her life and certainly for well over 60 years. Her two sons, her two daughters (married to British citizens) and 12 grandchildren have lived in the United Kingdom for many years and are all British citizens. She has a brother, also a British citizen, living in the UK. She has no remaining close family in Pakistan. She has a number of health problems. In earlier years she made a number of visits to this country to visit family members already resident here. She entered the UK on 8 April 2005 on a multi-entry visit visa valid until 8 April 2010. Her last entry into the country was on 15 December 2009 and on 7 April 2010 (the day before the expiry of her visa) she applied for leave to remain as a dependent relative of family members already in the UK. That application was refused on 21 April 2010 and appeals against that refusal to the First-tier and Upper Tribunals (respectively) were dismissed on 16 July 2010 and 16 February 2011. An application for permission to appeal to this court was also refused on 14 April 2011. The respondent’s formal appeal rights were exhausted on 5 May 2011. She has remained in the country unlawfully since that time.

During summer and autumn 2012 attempts were made to secure the respondent’s departure from the UK. She failed to report for a flight to Islamabad arranged for 18 July 2012. A home visit was made to her regular address in Stoke-on-Trent by immigration officers on 22 October 2012 but she was not present. Relatives told the officers that the respondent was in Rochdale but failed to supply any address at which she might be contacted.

Also on 22 October 2012, however, a further application by the respondent was lodged with the appellant, seeking leave to remain on grounds outside the Immigration Rules. That was in turn refused on 19 April 2013. It was pointed out in the decision letter that from 19 June 2012 new Immigration Rules had established a “rules based” approach to the consideration of Article 8 claims. The decision reached, applying those rules, was that there would be no breach of the respondent’s rights under Article 8 of the Convention.

On appeal to the First-tier Tribunal, the respondent’s appeal was allowed by a decision promulgated on 11 April 2014 on the basis that the respondent’s removal from the country would be a disproportionate interference with her rights under the Convention. Permission to appeal to the Upper Tribunal was granted, by a different judge of the First-tier Tribunal, on 13 November 2013. The Upper Tribunal agreed that the First-tier Tribunal had applied an erroneous approach to the law but, in remaking the decision, the Upper Tribunal dismissed the appellant’s appeal, holding that the respondent met the requirements for leave to remain on the grounds of her private life under paragraph 276ADE(vi) of the Immigration Rules, as they then stood, which were in the following terms:

“276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

(i)

does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3 and S-LTR.3.1 in Appendix FM; and

(ii)

has made a valid application for leave to remain on the grounds of private life in the UK; and

(iii)

has lived continuously in the UK for at least 20 years (discounting any period of imprisonment) […]

(vi)

subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK”.

The essence of the judge’s conclusion can be found in paragraph 16 of the determination as follows:

“Despite her past history of living in Pakistan where she was visited by her UK relatives, I find that the appellant has evidently taken the step to cut her ties with Pakistan by seeking to be with her UK based close family members. There is no evidence to suggest that she has anything left in Pakistan that might amount to a tie to that country, now, apart from it being her country of origin and the language. I therefore find that she is entitled to leave to remain on the grounds of her private life in accordance with the provisions of paragraph 276ADE(vi) of the Immigration Rules. I reach that conclusion on the basis that the respondent has not contested the existence of private and family life between the appellant and her close relatives in UK.”

The judge considered it unnecessary, therefore, to reach a decision on the respondent’s claim outside the Rules. However, he indicated that he would have reached a similar conclusion in application of Article 8 of the Convention. He found that there were “compelling circumstances relating to her relationships, loss of ties and state of health which led [him] to conclude that her position outside the rules can be considered”. In doing so, and in applying the decision in Razgar v SSHD [2004] UKHL 27, the judge held that the questions of proportionality should be resolved in the respondent’s favour.

By letter of 28 April 2014 from the appellant’s department, application was made to the Upper Tribunal for permission to appeal to this court. The application advanced detailed submissions to the effect that a second appeal should be permitted on the basis that the Upper Tribunal had made a material error of law raising an important point of principle or practice with regard to the criterion relating to “ties” in sub-paragraph (vi) of Rule 276ADE. Permission to appeal was granted by a different Upper Tribunal judge on 5 June 2014. In doing so, the judge said:

“The respondent contends that the Upper Tribunal’s finding that the appellant had voluntarily renounced her ties to Pakistan where she had lived for over 60 years before coming to the United Kingdom in 2010, and that therefore she qualified under Appendix FM and paragraph 276ADE of the Immigration Rules HC 395 (as amended), is legally erroneous because it fails to apply correctly the concept of ‘ties’ as set out in Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 60 (IAC). The grounds of appeal are arguable.”

As already mentioned, it was in the period following that decision that the appellant then delayed for 3 months before lodging an Appellant’s Notice. I have already set out above the basis upon which it is argued that an extension of time should be granted.

In advancing his submissions to this court, in support of the application for an extension of time, Mr Thomann for the appellant accepts that the principles deriving from the decisions of this court in Mitchell v News Group newspaper Ltd. [2013] EWCA Civ 1537 and Denton v TH White [2014] EWCA Civ 906 fall to be applied in cases of the present type: see R (Hysaj) v Secretary of Statefor the Home Department [2014] EWCA Civ 1633 and Secretary of State for the Home Department v SS (Congo) & ors. [2015] EWCA Civ 387. As noted by Richards LJ in the latter case a judge must approach an application for relief from sanction in three stages as follows:

“i)

The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules. The focus should be on whether the breach has been serious or significant. If a judge concludes that a breach is not serious or significant, then relief will usually be granted and it will usually be unnecessary to spend much time on the second or third stages; but if the judge decides that the breach is serious or significant, then the second and third stages assume greater importance.

ii)

The second stage is to consider why the failure occurred, that is to say whether there is a good reason for it. It was stated in Mitchell (at para. [41]) that if there is a good reason for the default, the court will be likely to decide that relief should be granted. The important point made in Denton was that if there is a serious or significant breach and no good reason for the breach, this does not mean that the application for relief will automatically fail. It is necessary in every case to move to the third stage.

iii)

The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application. The two factors specifically mentioned in CPR rule 3.9 are of particular importance and should be given particular weight. They are (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice directions and court orders. As listed in para. [35] of the judgment in Denton:

‘Thus, the court must, in considering all the circumstances of the case so as to enable it to deal with the application justly, give particular weight to these two important factors. In doing so, it will take account of the seriousness and significance of the breach (which has been assessed at the first stage) and any explanation (which has been considered at the second stage). The more serious or significant the breach the less likely it is that relief will be granted unless there is good reason for it. ...’”

As pointed out in Hysaj there is no special rule for public law cases but the importance of the issues to the public at large can properly be taken into account at stage (iii). Again, from the same case, it is to be noted that public authorities have a responsibility to adhere to the rules just as much as any other litigants: see the judgment of Moore-Bick LJ in Hysaj at paragraphs 41 and 42.

In this case, Mr Thomann put at the forefront of his submissions the argument that the appellant’s grounds of appeal were strong ones. In this context, Moore-Bick LJ said this (at paragraph 46 of his judgment in Hsaj):

“If applications for extensions of time are allowed to develop into disputes about the merits of the substantive appeal, they will occupy a great deal of time and lead to the parties’ incurring substantial costs. In most cases the merits of the appeal will have little to do with whether it is appropriate to grant an extension of time. Only in those cases where the court can see without much investigation that the grounds of appeal are either very strong or very weak will the merits have a significant part to play when it comes to balancing the various factors that have to be considered at stage three of the process. In most cases the court should decline to embark on an investigation of the merits and firmly discourage argument directed to them…..”

In support of the application for an extension of time, Mr Thomann advanced four points: first, the delay had occurred after permission to appeal had been granted; secondly, the omission had not been a deliberate tactical one, but a mere oversight; thirdly, the parties knew that permission has been granted and that an appeal would follow; and fourthly, as already mentioned, the appellant had a compelling case on the merits.

For my part, while these submissions were attractively advanced by Mr Thomann, I did not accept them.

With regard to the first point, which seemed to me to merge with the third, the fact of the grant of permission did not seem to take the matter much further. The grant of permission to appeal does not necessarily imply that an appeal will follow and, as time recedes the appeal may become less and less likely. As to the second point, I did not think that the fact of simple oversight in the office of the lawyers assisted the appellant. Such errors when they occur in the offices of private solicitors tend not to give rise to a legitimate excuse for delay warranting an extension of time. The situation is no different in this case.

On Mr Thomann’s fourth and final point, I recognise that the appellant may have had a relatively strong case that the Tribunals had erred, but that was true in the case of AC, one of the cases considered by this court in SS (Congo) & ors. (supra): see paragraph 112. However, no extension of time was granted in that case: it was thought that even if the appeal had been successful the case would probably have been remitted to the Upper Tribunal. That was a distinct possibility in this case too, as Mr Thomann accepted, although in his arguments on the appeal he also submitted that this court might have seen a way to allowing the appeal without such remission.

At this third stage of the Mitchell/Denton criteria, it is also relevant that this was to be a second appeal. While permission to appeal had been granted by the Upper Tribunal, I have grave doubts whether the case properly satisfied the second appeal criteria. Even if the appellant was right that the Tribunals below had reached erroneous decisions, the principles were in truth well known and the decisions, on this hypothesis, merely represented failures to apply those principles properly. No new or separate point of principle or practice arose on the proposed appeals at all. Moreover, there was little, if any, public interest in the appeal being heard. The decision in the case would have been no more than an illustration of the application of well-known principles to the facts of the present case. I would add that the case turned upon a version of the relevant Immigration Rule that is no longer in force. Hence it is, to my mind, impossible to identify how the present case satisfied the relevant test for a grant of permission to appeal in the first place.

In my judgment, it is important that the “second appeals” test is not strained to apply simply to a case in which, at first blush, the proposed appellant might appear to have a “good case” when no real issue of principle or practice is raised in the case at all.

After hearing Mr Thomann’s helpful submissions, there was no doubt in my mind that if a similar mistake had been made by solicitors in a private law case, there would have been no question of an extension of time being granted. As Moore-Bick LJ said in Hysaj there is no special rule for public authorities and in this case there were no issues of importance to the public at large.

For these reasons, I reached the view that the application for an extension of time should be refused.

I agree.