NA (Bangladesh) v Secretary of State for the Home Department

LORD JUSTICE CHRISTOPHER CLARKE: The Appellant is a citizen of Bangladesh. She seeks permission to appeal from the decision of the Upper Tribunal whereby, firstly, it considered an out of time application for permission to appeal by the Secretary of State for the Home Department from the decision of the First-tier Tribunal; secondly, set aside the decision of the First-tier Tribunal; and thirdly, reversed the decision of the First-tier Tribunal on the rehearing.

The relevant history is as follows. The First-tier Tribunal allowed the Appellant's appeal against automatic deportation on human rights grounds. On 18 September 2013 the FTT refused permission to appeal. That decision was served on the Secretary of State on 20 September 2013. The deadline for filing an application to appeal to the Upper Tribunal under the rules as they then stood was on 1 October 2013. In the event, the application was filed on 2 October 2013, that is to say one day late.

On 11 October 2013 the matter came before Upper Tribunal Judge Eshun. She granted permission to appeal. She did not consider, much less rule upon, the significance of the late filing probably because the lateness was not apparent to her, not least because in her application the Secretary of State had said that the appeal was filed in time.

On 15 November 2013 a hearing took place at Field House. By now, the Appellant had pointed out the fact that the application for permission to appeal was out of time. Having considered the rival contentions of the parties, both of whom were represented, the judge decided to admit the appeal. The decision to this effect was promulgated on 14 January 2014.

In a determination promulgated on 14 April 2015 Upper Tribunal Judge Hanson allowed the appeal of the Secretary of State. He found the decision of the FTT to be erroneous in law. He remade the decision and dismissed the Appellant's appeal against the decision of the Secretary of State. His judgment is lengthy and detailed.

The Appellant sought to appeal and filed a substantial skeleton argument containing a very wide challenge to the decision of the Upper Tribunal. This included the contention that the Upper Tribunal Judge was wrong to extend time, but not that he was precluded from doing so. That had not been suggested at the hearing on 15 November 2013. What had been argued was that he should not extend time.

On 30 September 2015 Moore-Bick LJ refused permission to appeal to this court on paper. On the question of an extension of time, he held that it was a matter for the tribunal's discretion and there was no prospect of overturning its decision. As to the remainder, he held that the grounds of appeal all turned on issues of fact where it was not reasonably arguable that the tribunal's decisions were perverse.

The Appellant's representation has changed so that counsel presently representing her is not the same as counsel who drafted the previous skeleton. By an advocate's statement which I received yesterday and a supplementary skeleton argument, the court has been told that the Appellant wished to focus on the point that it was not open to the Upper Tribunal to extend time.

Reliance is placed on rule 21(6) of the Tribunal Procedure (Upper Tribunal) Rules 2008 which provides:

The Appellant seeks to argue that the application of 2 October 2013 for permission to appeal was invalid because it included no request for an extension of time or any reason why the application was not provided in time. Accordingly, it is said the Upper Tribunal was bound by rule 21(6)(b) not to admit it. On 11 October 2013 the Upper Tribunal had failed to realise that the application was out of time and on 15 November 2013 it had failed to consider the particular requirements of rule 21(6). The decision to which it referred of Boktor and Wanis [2011] UKUT 442 had been a case in which there had been an application for extension of time in the original application. Whether these contentions were correct or not raised, it is submitted, an important question of practice.

In my judgment, there is no realistic prospect of persuading the full court that the rules have this effect. I say that for a number of reasons.

First, they do not say that. Rule 21(6)(a) requires a late application to include a request for an extension and rule 21(6)(b) provides that the Upper Tribunal must not entertain any application unless there is an extension of time, but the rule does not say that the Upper Tribunal must not entertain the application if a request for an extension is not included in the application. If that was what was intended, the rules could easily have said so.

Second, what the rules do say is that the Upper Tribunal must not entertain a late application unless the Upper Tribunal extends time for the application under rule 5(3)(a). That rule is an entirely general power unfettered by conditions.

Third, the result contended for would be manifestly unjust in many cases. If no request for an extension together with reasons is made in the application form, the position is, so the Appellants claims, forever lost.

In such circumstances, no consideration is to be given to whether the failure to issue the application in time, or to include in it a request for extension, is excusable, nor is it relevant whether the Respondent has suffered any prejudice. The hapless alien with an excellent case who is ignorant of the time limit or has an understandable reason for failing to comply with it and who is ignorant of the rule must fail. The length of the delay in filing is immaterial. One day is the same as 100. Presumably also the objection could, absent anything that could amount to waiver be taken even if the appeal proceeds as far up the curial ladder as possible. If the application is to be regarded as a complete nullity, no waiver of the defect would be possible.

That that is not a tenable view, it appears to me, confirmed by the provisions of rule 7:

waiving the requirement;

requiring the failure to be remedied..."

Draco might have approved the position argued for, but it would, in my judgment, require a much clearer provision in order for it to be an acceptable interpretation of the rules. There are no doubt good policy reasons for providing that an application for permission should include within it an application for extension of time and reasons, but the legislator cannot, it seems to me, be taken to have intended by the words that he used that a failure to include a request for extension with reasons in the application was invariably fatal to its success.

That the intention of the legislator is a material consideration appears from the case of R v Secretary of State for the Home Department, ex p Jeyeanthan [1999] EWCA Civ 3010. I note also that in that case Lord Woolf hoped that provisions intended to have an effect such as argued for in this case would be few and far between and held that, in determining what are to be the consequences of failing to comply with a procedural requirement, the tribunal's task will be to seek to do what is just in the circumstances because procedural requirements are designed to further the interests of justice. He also recognised that a requirement may be clearly directory because it lays down a time limit, but a tribunal is given an express power to extend the time for compliance.

Fourth, if the position is not such that the application was a complete nullity, then the Appellant was entitled to waive the non-compliance and in my judgment, must be taken to have done so by failing to rely before the Upper Tribunal on the point that the application did not contain a request for an extension of time and reasons. That failure continued in the first skeleton argument.

Fifth, the Appellant's own arguments seem to me to have certain curiosities. It appears to be accepted that the Upper Tribunal could, prior to adjudicating on the application to extend time, have permitted amendment of the application to include a request for extension, a circumstance which would mean that the failure to include the request could be retrospectively remedied.

Secondly, it is suggested that one route round the problem would be for the Secretary of State to file another application seeking an extension of time and citing as the reason for delay the filing of the earlier application which was invalid through failure to identify the fact that that earlier application was made out of time or to seek an extension and give reasons there for. If these expedients are open, it seems to me difficult to see why the Appellant's austere interpretation should be adopted in the first place.

For these reasons, I decline to grant permission to appeal on the new way of putting it, despite Mr Fripp's able arguments on this new point. I am quite satisfied that it was open to the Upper Tribunal Judge to grant a one day extension and that for the reasons given by Moore-Bick LJ, the appeal has no realistic prospect of success and certainly does not pass the second appeals test.