Mohammad Faroque Hossain Baparee, R (on the application of) v Secretary of State for the Home Department

This is an appeal by Mr. Mohammed Baparee against the refusal of the Upper Tribunal (Immigration and Asylum Chamber) (“the UT”) to admit the appellant’s application for judicial review of the decision by the respondent, the Secretary of State for the Home Department, dated 3 January 2023 that his application for leave to remain was invalid. Although the UT decided that the appellant’s grounds of challenge to that decision were arguable, they refused to admit his application because he had not sent it so that it was received by the Tribunal within 3 months after the decision. They refused to grant the necessary extension of time.

The appellant is a national of Bangladesh. He was born on 1 December 1978. On 3 September 2020 he entered the UK with his wife, Hazera Hossain, and their son, Mursalin Hossein, on a 2-year multiple visit visa.

Because of the Covid-19 pandemic the family were unable to return to Bangladesh as planned. In February 2021 all of the family tested positive for Covid-19. On 30 June 2021 the appellant applied to the Home Office for an “exceptional assurance” under its “Coronavirus concessions” introduced in response to the pandemic. On 23 July 2021 the Home Office granted him that exceptional assurance allowing him to remain in the UK until 1 October 2021. The letter stated that “during this time you will not be regarded as an overstayer or suffer any detriment in any future applications”.

In the meantime the appellant’s wife had made an application on 7 May 2021 for leave to remain in the UK as an “Overseas Business Representative” (“OBR”) with their son as her dependant. On 16 August 2021 the appellant’s wife and son were granted limited leave to remain under the OBR rules until 16 August 2024.

On 31 August 2021, before the end of the exceptional assurance period, the appellant applied to the Home Office for leave to remain as the spouse of a person granted leave to remain under the OBR rules.

On 29 March 2022 the Home Office refused the appellant’s application and maintained that decision on 12 April 2022. The reason given was as follows:

“Guidance for switching in-country to the Dependant Route of Overseas Business Representative:

Migrants can switch, change immigration category, in-country provided they were not last granted:

•

entry clearance or leave as a visitor, short-term student or short-term student (child)

•

temporary admission

•

temporary release

In view of the fact that you have applied for Leave to Remain as the Dependant of a Overseas Business Representative Migrant, but your last leave to Enter the United Kingdom was granted as a Visitor, you are therefore unable to switch to the dependant route.”

On 22 April 2022 the appellant applied for an administrative review of that decision on the basis that the application had been made “in country” because of the Covid-19 restrictions and in line with the exceptional assurance. That application resulted in the Home Office deciding on 24 May 2022 to withdraw the decision of 12 April 2022 because officials had made an error:

“I have carefully considered the points that you raised in your administrative review. I have withdrawn the original decision because I have found that the original decision maker made an error when considering your application.

The error was that your application was not considered using the correct rules. Therefore, I have sent your application for reconsideration to correct the error and make a new decision on your application.” (emphasis added)

However, when the Home Office redetermined the appellant’s application on 3 January 2023 they decided once again that it was invalid, essentially for the same reasons as had been given in the decision dated 12 April 2022 and which, according to the letter dated 24 May 2022, had involved applying the wrong rules:

“You have attempted to make an application as a dependant of a representative of a overseas business, however, your application is invalid.

You were last granted permission to enter the UK as a Visitor, and you are now applying to extend your permission to stay in the UK as a dependant of a representative of a overseas business.

Paragraph ROB 20.4. of Appendix Representative of an Overseas Business states:

ROB 20.4. A person applying for permission to stay must be in the UK on the date of application and must not have, or have last been granted, permission:

(a)

as a Visitor; or

(b)

as a Short-term student; or

(c)

as a Parent of a Child Student; or

(d)

as a Seasonal worker; or

(e)

as a Domestic worker in a private household: or

(f)

outside the Immigration Rules.

As such, you do not meet the validity requirements as set out in Appendix Representative of an Overseas Business and therefore your application has been rejected.”

The letter of 3 January 2023 made no attempt to address the letter from the Home Office dated 24 May 2022, in particular to explain why the Home Office had been incorrect in stating that the original decision had been based on the wrong rules. The appellant was back to square one.

The appellant’s immigration advisers sent a pre-action protocol letter to the Home Office on 9 February 2023. The Home Office replied on 6 March 2023 stating that although the Coronavirus concessions in place on 7 May 2021 when the appellant’s wife made her application under the OBR rules would have allowed the appellant to switch to that route from the visitor route, that particular concession had ceased by the time he made his OBR application as a dependant on 31 August 2021.

However, according to the appellant’s skeleton before the UT, it was not until just before the hearing on 9 October 2024 that the respondent made the relevant policy statements available. The appellant submitted to the Tribunal that there was no relevant difference between the policies applicable on 7 May and 31 August 2021. This issue between the parties about the correct interpretation of these two editions of the policy was the point of law which the UT decided is arguable.

An application for judicial review can only be made in the UT if permission to make it is obtained from the Tribunal (s.16(2) of the Tribunals, Courts and Enforcement Act 2007). The procedure in the UT is governed by The Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008 No. 2698) (“the 2008 Rules”). Part 4 deals with judicial review proceedings in the UT.

Rule 28(1) requires a person seeking permission to bring judicial review proceedings to make a written application to the UT. Rule 28(2) provides:

“Subject to paragraph (3), an application under paragraph (1) must be made promptly and, unless any other enactment specifies a shorter time limit, must be sent or delivered to the Upper Tribunal so that it is received no later than 3 months after the date of the decision, action or omission to which the application relates.”

Thus, it is clear that the rule requires the application to be received by the UT within the time limit.

Rule 28(7) deals with applications for permission which do not comply with the time limit in rule 28(2):

“If the applicant provides the application to the Upper Tribunal later than the time required by paragraph (2) or (3) or by an extension of time allowed under rule 5(3)(a) (power to extend time)—

(a)

the application must include a request for an extension of time and the reason why the application was not provided in time; and

(b)

unless the Upper Tribunal extends time for the application under rule 5(3)(a) (power to extend time) the Upper Tribunal must not admit the application.”

Rule 5(3)(a) is one of the UT’s “case management powers” enabling it to extend or shorten the time for complying with any rule.

Rule 28(8) provides that, save for immigration judicial review proceedings (as defined in rule 1(3)), when the UT receives an application for permission it must send a copy of the application and any accompanying documents to each person named in the application as a respondent or interested party.

It is common ground that the appellant was seeking to bring immigration judicial review proceedings. In such a case, rule 28A(2) requires an applicant to provide the parties with the claim and any accompanying documents and to tell the UT that he has done so:

“Within 9 days of making an application referred to in paragraph (1), an applicant must provide—

(a)

a copy of the application and any accompanying documents to each person named in the application as a respondent or an interested party; and

(b)

the Upper Tribunal with a written statement of when and how this was done.”

In an immigration case, a party provided with a copy of the application by an applicant who wishes to take part in the proceedings must provide an acknowledgement of service to the UT so that it is received no later than 21 days after the date on which the applicant provided him with that copy (rule 29(1)).

It is common ground that the time limit for the UT to receive a claim form in relation to the respondent’s decision expired on 3 April 2023.

The appellant said that on 26 March 2023, which happened to be a Sunday, he posted to the UT a claim form for judicial review and that he did so at the Chelsea Royal Hospital post office. There is no issue about the correctness of the address which the appellant says he used for the UT.

The copy of the claim form challenged the decision dated 3 January 2023 and contended that the respondent had misinterpreted her policy or that she had applied it irrationally.

Having heard nothing from the UT, in April 2024 the appellant retained the services of the solicitors currently acting for him. They advised him that following the submission of his application for permission, he should have received from the UT an acknowledgement and a sealed version of the claim form. That had not happened.

Accordingly, on 22 April 2024 the solicitors emailed the UT to say that, although the appellant had submitted his application on 26 March 2023, he had not received any response. They asked the Tribunal to give an update. On 24 April 2024 the UT replied to say that they had no record of any application having been made by the appellant.

On 26 April 2024 the solicitors sent to the UT an application for permission to apply for judicial review of the decision made on 3 January 2023. The claim form accepted that the UT had not received the earlier application and asked for an extension of time down to the receipt by the Tribunal of the fresh application. The form stated that it was accompanied by a “proof of posting” for the earlier application for judicial review. But it appears that that document was not provided at that stage.

On 18 June 2024 the appellant’s solicitors sent a statement to the UT that it had provided a sealed copy of the claim to the respondent that day. On 26 June 2024 the UT extended time for compliance with rule 28A(2).

On 20 June 2024 the Government Legal Department emailed the appellant’s solicitors to say that they had not been provided with the grounds of challenge and the bundle accompanying the claim. The Statement of Facts and Grounds was subsequently provided.

On 22 July 2024 the respondent served an Acknowledgement of Service with Summary Grounds of Defence. The respondent pointed out that the appellant had given three different dates, including 26 March 2023, for the service of his original claim form and called for an explanation. She submitted that the application should be dismissed on the grounds of delay, given that it was long out of time and the appellant had not explained why he had taken over 14 months to make it. The respondent then maintained her interpretation of the policy on Coronavirus concessions.

On 4 September 2024 UT Judge Norton-Taylor refused to admit the application for judicial review after considering the matter on the papers. The judge referred to the unexplained discrepancies as to the dates when a claim had been sent in 2023 and the absence of any proof of posting. He said that the lack of any explanation for the subsequent inaction on the appellant’s part indicated that the claim form had not been posted at all in March 2023. The appellant had not provided a witness statement.

The judge then went on to accept the respondent’s explanation of the policy on Covid concessions and decided that no arguable error of law had been made, although it appears that neither side provided the UT with a copy of those policies at that stage.

The appellant renewed his application for permission to an oral hearing which took place on 9 October 2024 before Upper Tribunal Judges Perkins and Ruddick.

The appellant’s solicitor Mr. Pasoon Sadozai gave a witness statement dated 19 September 2024, explaining that there had been typographical errors in the dates given previously for the posting of the claim form in 2023. The appellant had posted it on 26 March 2023.

The appellant provided a witness statement dated 1 October 2024. He stated that he had drafted the grounds of challenge and completed the claim form himself. He produced a certificate of posting bearing a stamp of the Chelsea Royal Hospital post office dated 26 March 2023. He said that he had not been aware of the procedure requiring him to notify the Home Office of the claim and to expect an Acknowledgement of Service in return (para.13). Then in the following paragraph the appellant moved forward in time to April 2024 when he instructed solicitors because he had not heard from the UT. His evidence at para.18 on the intervening period of 13 months was as follows:

“I respectfully inform the court that I was not aware of the specific procedures. I regularly queried my former representative to ascertain the progress of my application, and I was advised to wait.”

Counsel then appearing on behalf of the appellant produced a skeleton dated 27 September 2024 for the hearing. By that stage the appellant had access to the relevant policy documents which, he submitted, showed that the Covid concessions in force on 31 August 2021 when the appellant had made his application for leave to remain under the OBR rules still allowed him to switch to that route, just as his wife had done. The skeleton also addressed the principles for granting an extension of time and the circumstances of this case.

It appears that the respondent did not provide a skeleton argument for the hearing responding to the appellant’s submissions.

We have been provided with a transcript of the hearing in the UT on 9 October 2024 occupying some 19 pages. The initial discussion between the Tribunal and the appellant’s counsel mainly related to the interpretation of the policy documents (pp.3 to 6). However, Judge Perkins told counsel that the Tribunal was concerned about the suggestion that the appellant, who was living in Ilford, had travelled to Chelsea to post his claim. Counsel explained that the appellant spent a good deal of his time in West London (p.2). At page 7 the judge said the Tribunal was very much bothered by the lack of an explanation in the evidence for the choice of post office and the fact that the date of the claim and the date of posting were the same.

Mr. Yarrow, who appeared for the respondent before the UT and before us, addressed the interpretation of the policy documents at pp.7 to 9 and the appellant’s counsel replied at pp.10 to 12.

After retiring with his colleague, Judge Perkins then said to counsel that the Tribunal was troubled about the certificate of posting and asked whether the appellant could be called to give evidence (p.13). The appellant did give evidence. He confirmed the accuracy of his witness statement (pp.14-15). Judge Perkins asked the appellant’s counsel to put certain questions and then posed some questions himself. The appellant said that he submitted his claim form to the UT by post on 26 Match 2023 (pp.16-17).

The appellant explained that he had posted the claim form himself at the weekend. He had been in West London, as was often the case at weekends and found the nearest post office to be at the Royal Chelsea Hospital. He explained in answer to questions from the judge why the form bore the same date as the certificate of posting and how it was that he had been able to find that certificate for use in the litigation.

Then the Tribunal asked questions which raised an issue for the first time in the proceedings as to whether the claim could have been posted on 26 March 2023 because that was a Sunday and post offices were not thought to be open on that day of the week (pp.17-18):

“JUDGE PERKINS: One thing that is really troubling us, Mr Baparee, is that…Just remind me of the date on there please, just to see if you are reading it the same. What is the date on there?

A.

26 March.

JUDGE PERKINS: 26 March, yes. We have looked it up and we think 26 March is a Sunday. Could that be right?

A.

Yes, weekend. It was weekend, My Lord. Saturday or Sunday.

JUDGE PERKINS: We are not aware that post offices of opening on Sundays.

A.

Yes, post offices are open on Sunday.”

There the UT’s questioning of the appellant finished. The appellant’s counsel did not take up the opportunity given to him to ask any further questions. Mr. Yarrow did not cross-examine the appellant at all and so there was no re-examination.

At that point Mr. Yarrow simply said that he would invite the UT “to take formal judicial notice of the fact that post offices are not open on a Sunday”. He made no other submissions on the issues relating to delay and extension of time. This was the first time that judicial notice was raised. It only arose because of the questions which the UT had put. There had been no suggestion from the respondent before the hearing that the claim had not been posted on 26 March 2023 because that date was a Sunday.

The appellant’s counsel interjected that he was not sure that it was correct to say that post offices do not open on a Sunday. Judge Perkins responded “Well, that’s a submission…”. The judge also said “I think it is entirely contrary to our experience. I am not sure it is within the scope of judicial notice”. Given that comment and the way in which this subject arose at the end of the hearing, counsel for the appellant could be forgiven for not appreciating the crucial part it would play in the UT’s decision not to admit the claim.

The UT retired to consider its decision and then gave an ex tempore judgment dismissing the claim. We have not been supplied with a transcript of the judgment. Both parties have been content for the appeal to be determined on the basis of the UT’s written reasons for its decision, as set out in its order dated 10 October 2024 (see rule 30(1) of the 2008 Rules).

In so far as is relevant to the submissions made by both parties in this appeal, the UT’s reasons included the following:

“5.

The applicant’s solicitor has explained that the applicant told him that he had filed this application for judicial review on 26 March 2023. The applicant has confirmed this in his further witness statement. He said that he served the application by ordinary post. His statement exhibits a Certificate of Posting showing one item sent to the Upper Tribunal at the Chelsea Royal Hospital Post Office on 26 March 2023.

6.

We find the evidence concerning the attempt to serve papers on the Tribunal to be very unsatisfactory. We asked to hear oral evidence from the applicant. The applicant lives in Ilford. He has produced a Certificate of Posting issued by the Chelsea Royal Hospital Post Office. The applicant says that he spends time in West London because he “liked the structures”. The Certificate of Posting is dated 26 March 2023 which we believe to be Sunday. In our experience Post Offices do not open on Sunday.

7.

The applicant said that he was able to produce the certificate of posting easily because it is his habit to keep his papers in order. That may be right, but we still find it remarkable that he was able to produce such a document but not to consider, for example, sending the item by recorded delivery.

8.

We are not satisfied that we have been given a full explanation for the attempt to send the claim by post on the Tribunal, which, as far as we know, never received it.

9.

On 22 April 2024 (he was not instructed until “mid-April 2024”) the applicant’s solicitor asked the Upper Tribunal about the status of the application and it transpired that the Tribunal had no record of it.

10.

We are not satisfied that it was ever sent.

11.

Before deciding on the merits on the application we have considered the merits of the case. It is the applicant’s core contention that, under the terms of the policy then in force, he was qualified by reason of benefitting from “exceptional assurance”. The relevant policy includes the words:

“You are also able to apply for permission to stay to remain in the UK if you have been issued with an ‘exceptional assurance’. You must submit your application before the expiry of your ‘exceptional assurance’.”

12.

Mr Yarrow has given cogent reasons for interpreting the phrase more narrowly than its plain meaning but we find it arguable that the applicant did come within the scope of the policy because he did have exceptional assurance (wrongly identified as leave to remain in the Summary Grounds of Defence) and submitted his application before it expired.

13.

With this finding in mind we are hesitant to refuse permission because the application for judicial review was late but it is clear that the application relied upon was late and it is far from clear that the applicant ever tried to make a timely application.

14.

Even if he did it did not arrive, and he did nothing to chase it for more than a year. That is a long delay and the respondent was entitled to consider the matter closed.

15.

There is no good explain for the delay other then not understanding the process of seeking judicial review.”

Mr. Lee appeared for the appellant at the hearing of this appeal. In his oral submissions he refined the arguments for his client.

He submitted that the UT’s decision to refuse permission to apply for judicial review was flawed by a material error of law, namely the taking of judicial notice that post offices do not open on Sundays. There was no evidence before the UT to support their factual finding on this point and no justification for treating it as a matter of judicial notice. He referred to Scott v The Attorney General of the Bahamas [2017] UKPC 15 where Lord Kerr giving the judgment of the Privy Council said this at [40]-[41]:

“40.

Judicial notice is the acceptance by the courts of facts or a state of affairs which are so notorious, or so clearly established, that evidence of their existence is deemed unnecessary. As Cross and Tapper on Evidence 12^th ed (2010), p 76 state:

“Judicial notice refers to facts which a judge can be called upon to receive and to act upon either from his general knowledge of them, or from inquiries to be made by himself for his own information from sources to which it is proper for him to refer.”

41.

Moreover, the party seeking judicial notice of a fact “has the burden of convincing the judge (a) that the matter is so notorious as not to be the subject of dispute among reasonable men, or (b) the matter is capable of immediate accurate demonstration by resort to readily accessible sources of indisputable accuracy” – Morgan, Some Problems of Proof under the Anglo-American System of Litigation 36.”

Alternatively, Mr. Lee submitted that the UT’s conclusions that the post office at the Royal Chelsea Hospital was closed on Sundays at the material time involved a mistake of fact giving rise to unfairness, applying the principles in E v Secretary of State for the House Department [2004] QB 10 at [66].

Mr. Lee submitted that, immediately after referring to the certificate of posting [5], the UT said that it found the evidence on the attempt to serve the papers on the Tribunal “very unsatisfactory” [6]. They then referred again to the certificate dated 26 March 2023, a Sunday, and then immediately said that “In our experience post offices do not open on Sunday”. There was no evidence on the matter and so the UT were only entitled to rely upon this point if it fell within the ambit of judicial notice.

He submitted that the UT relied upon that finding to support its conclusions that the appellant’s evidence of posting his claim to the Tribunal was unsatisfactory and that they were not satisfied that it had ever been sent [6] and [10]. The materiality of this point to the decision to refuse to admit the application is also apparent from the transcript of the hearing.

Mr Lee submitted that those conclusions also undermined the appellant’s reliance upon the certificate of posting. At [7] the UT found it “remarkable” that the appellant had been able to produce the document. The clear implication of the Tribunal’s approach was that they did not accept the veracity of the appellant’s evidence that he had posted the claim to the UT on 26 March 2023 or that the certificate of posting was genuine.

Counsel submitted that the UT cannot have disregarded those matters when they considered other parts of the appellant’s evidence, including his explanations for being in the Chelsea area on 26 March 2023 and why he had not chased the UT for news as to what was happening to his claim.

Counsel said that if the UT had been satisfied that the appellant had posted the claim on 26 March 2023, the issue of whether time should be extended in relation to the 2024 claim would have involved different considerations for the Tribunal as compared with a scenario where the appellant had not sent the claim at all before April 2024.

Mr. Yarrow submitted that the UT did not take judicial notice that post offices do not open on Sundays, alternatively if they did and that was inappropriate, the error was not material to the outcome of the application.

Mr. Yarrow said that the Tribunal had been troubled by a number of matters in the appellant’s case on delay which they took together in the round. There was the question why the claim had been posted in Chelsea rather than Ilford, particularly if the appellant prepared the pleadings at home on the same day as they were posted. Judge Norton-Taylor had also referred to the discrepancy as to whether the claim had been posted on 26 March 2023 or on some earlier date. In that context the UT had been concerned about the certificate of posting. It did not accompany the claim form for the 2024 judicial review despite the cross-reference to it, the bundle was prepared late and it had still not been provided by the time the application for permission was considered on the papers. The certificate was not provided until the appellant’s witness statement of 1 October 2024.

Mr. Yarrow also referred to Judge Perkins at p.18 of the transcript where he said that he was not sure that the closure of post offices on Sunday was within judicial knowledge. He suggested that the UT’s statement in [6] that “in our experience post offices do not open on Sunday” served only to inform what he described as “a probabilistic assessment” of the likelihood of the Royal Chelsea Hospital post office having been open on the Sunday in question.

Counsel submitted that the UT did not make a finding that the appellant had been dishonest in claiming to have sent the claim form on 26 March 2023. Instead, they treated the witness as having “failed to come up to proof” when he said that he had posted the claim on that date.

In the alternative, Mr. Yarrow relied upon the Respondent’s Notice and submitted that fresh evidence, if admitted, shows that the post office in question did not open on 26 March 2023. If the court should decide that the UT wrongly took that view by relying upon judicial notice or their own experience, that error was non-material because of the fresh evidence. In other words, the UT would have refused to admit the application because that evidence shows that the claim could not have been sent on that date from that post office.

It is plain from the UT’s decision at [13] that because of the arguability of the ground of challenge, the Tribunal would have granted the appellant permission to apply for judicial review but for their findings that the 2024 claim for judicial review was late and the appellant had not satisfied them that he had tried to make a timely application. That can only be a reference to his evidence that he sent the claim to the UT at the Royal Chelsea Hospital post office on 26 March 2023. The appellant did not suggest that he did so at some other post office or on some other day.

The statement by the UT that “in our experience post offices do not open on Sunday” [6] was not qualified, but absolute. The Tribunal did not say most post offices do not open on a Sunday, or suggest that some might do. The UT’s statement did not form part of some probabilistic assessment of the chances that the post office in question had been open on 26 March 2023.

If, however, the UT had found that some post offices open on a Sunday, or that the Royal Chelsea Hospital post office was, or may have been, open on 26 March 2023, there is nothing in its reasoning to indicate that it would still have rejected the appellant’s application to extend time and refused to admit the application to apply for judicial review. That reasoning carries no suggestion that the UT treated the other considerations listed by Mr. Yarrow, namely concerns about the location of the post office some distance away from the appellant’s home, where he prepared the claim the same day, and the “production” of the certificate of posting, as a freestanding basis for its decision to refuse to extend time. In my judgment the UT’s treatment of the “Sunday opening” issue formed an integral part of its reasoning.

I accept Mr. Lee’s submission that the UT’s view on Sunday opening must have affected the view they formed about, at the very least, the appellant’s reliability or credibility as a witness, if not his honesty. Put simply, he said that on 26 March 2023 he went into a post office to send his application to the UT and obtained a certificate of posting there, whereas the Tribunal was of the view that no post office could have been open for business that day. I also agree that the UT’s view on the appellant’s credibility must have affected the conclusions it reached on his evidence about such matters as the choice of post office, the certificate and his explanation for not having taken any steps to find out from the UT what had happened to the 2023 claim.

The respondent could have chosen to focus on the adequacy of the appellant’s explanation for not making contact with the UT to find out what had happened to a claim that had to be received by them by 3 April 2023 until a year later. But she did not do so in her oral submissions before the UT. Even if, contrary to my view, the judicial notice error could not have tainted the Tribunal’s fact-finding on this point, they did not clearly identify it as a freestanding reason for their decision. Mr Yarrow did not seek to persuade us that we should uphold the UT’s decision on this point alone.

So this part of the argument comes down to whether it was permissible for the judges of the UT to take into account their experience that post offices do not open on Sunday. That phraseology is perhaps reminiscent of page 18 of the transcript where Judge Perkins said:

“I think [post offices opening on a Sunday] is entirely contrary to our experience. I am not sure it is within the scope of judicial knowledge”.

If the UT was relying simply upon the experience of the two judges sitting in that constitution, plainly that was not evidence at all. Mr. Yarrow did not suggest otherwise.

The views of the judges on this subject could only have been admissible if they related to a fact of which judicial notice could be taken, as Mr. Yarrow chose to urge upon the UT towards the very end of the hearing.

The concept of judicial notice is discussed in chapter 3 of Phipson on Evidence (20^th ed.). Mr. Yarrow did not suggest that the explanation of that principle given in Scott was incorrect. Nor did he cite any authority to support the submission he had made to the UT that judicial notice applied to the matter in question. No attempt was made before the UT or before us to explain why it was a “notorious fact” that post offices do not open on Sundays. I would not accept that bold proposition. Of course, if counsel had simply asserted that some or even many post offices do not open on Sundays, the point would have lost all its force without evidence that the post office in question did not open on Sundays at the material time. But that did not form part of the respondent’s case before the UT.

The procedure which was followed in this part of the hearing before the UT is troubling in a further respect. When the witness gave evidence that the date of posting recorded on the certificate was 26 March 2023, Judge Perkins said that the Tribunal was not aware of post offices opening on Sundays. The appellant then gave evidence that they do. No further questions were put. It should have been clear that the view expressed by the Tribunal, as well as the respondent’s assertion that the matter was covered by judicial notice, contradicted the witness’s evidence and went to his reliability as a witness. It is surprising to say the least that no-one saw the need for that implicit criticism of the appellant to be put fairly and squarely to him, in particular by the respondent’s counsel (Phipson at para.13-12)).

I turn to deal with Mr. Yarrow’s alternative submission and the Respondent’s Notice.

The appellant’s skeleton argument in support of the application for permission to appeal sought to rely upon fresh evidence, namely screenshots from the internet taken on 9 October 2024 from which it appeared that the opening hours of the post office in question included Sundays. In addition, the appellant relied upon a letter dated 30 April 2025 from Mr. Manish Patel purporting to write on behalf of the “Chelsea Post Office”. He says that that office was open on Sundays until October 2024.

In his order dated 2 May 2025 granting the appellant permission to appeal, Stuart-Smith LJ recorded that he had been informed that the UT was shown the screenshots dated 9 October 2024, the date of the hearing before them. It was arguably unsound therefore, that the UT had found that post offices did not open on Sundays. He directed the respondent to indicate whether she agreed that the post office in question was open on 26 March 2023 and with the contents of the letter from Mr. Patel dated 30 April 2025.

On 3 September 2025 the respondent applied to rely upon fresh evidence contained in a witness statement of that date by Fatima Fares, a lawyer in the Government Legal Department (“GLD”). She has given unchallenged evidence that the screenshots produced by the appellant were not shown to the UT. Fortunately for the appellant, this does not affect the resolution of the issue we have to determine: that is whether the fresh evidence is admissible and shows that the error made by the UT is immaterial because the post office was not open on 26 March 2023.

In summary, the witness statement of Ms. Fares refers to archived web pages indicating that the post office was closed at weekends in March 2023, setting out technical reasons as to why the appellant’s screenshots could be inaccurate and producing emails from someone who in September 2025 was a manager at the post office. That manager said that she had been told by Mr. Patel, a person who worked at the post office in March 2023, that he had never written or signed the letter of 30 April 2025 and that the use of the certificate of posting form bearing the date 26 March 2023 had been discontinued in 2016 or 2017. The Respondent’s Notice challenged the genuineness of the letter dated 30 April 2025 from Mr. Patel and of the certificate of posting and asked this Court to conclude that the post office was closed on 26 March 2023.

On 27 October 2025 the appellant applied to rely upon fresh evidence: a witness statement from Mr. Manish Patel dated 23 October 2025 and a witness statement from the appellant dated 24 October 2025. Mr. Patel says that the letter of 30 April 2025 was written by him and is accurate. He contradicts the information which the current manager says he gave to her as recounted in her email to the GLD. He says that the certificate of posting and the stamp it bears are both genuine. Lastly, Mr. Sadozai produced a further witness statement dated 31 October 2025 in which he exhibits printouts of recent internet searches showing a number of different post offices which open on Sundays.

The admissibility of fresh evidence on an appeal is governed by CPR 52.21 replacing the former RSC Ord. 59 r.10(2). As explained in Terluk v Berezovsky [2011] EWCA Civ 1534 at [32], the principles laid down in Ladd v Marshall [1954] 1 WLR 1489, 1491 are no longer primary rules, effectively constitutive of the court’s power to admit fresh evidence. The primary rule is given by CPR 52.11(2)(b) coupled with the duty to exercise it in accordance with the overriding objective. However, the principles in Ladd v Marshall remain relevant as matters which must necessarily be considered in the exercise of the court’s discretion as to whether to permit a party to an appeal to rely on fresh evidence.

In public law cases, exceptional circumstances or the interests of justice may justify a more flexible approach or a departure from Ladd v Marshall principles (see the discussion in E v Secretary of State for the Home Department at [68] to [89]). Whether to allow flexibility is highly sensitive to the facts and context of each case. For example, in an asylum case it may be appropriate to have regard to genuine difficulties in obtaining relevant evidence at an earlier stage [88] depending on the circumstances of the case and the legal issues involved.

The issue of whether the claim form could not have been sent to the UT on 26 March 2023 because that was a Sunday and the post office was shut that day was only raised at the hearing by the Tribunal itself. But plainly this point had been open to the respondent to take before the hearing. If the respondent wished to rely upon the point, she should have raised the matter in advance of the hearing before the UT. Alternatively, if the point only arose at the hearing as an issue raised by the Tribunal and the respondent wished to rely upon it, then rather than making a misconceived attempt to rely on judicial notice, the respondent ought to have applied for an adjournment so that proper evidence could be laid before the Tribunal and, if justified, be the subject of cross-examination. If after the evidence had been filed the issue was to be pursued, the UT would have been able to take that material into account and determine the matter properly as part of its overall decision on the appellant’s application. That is what should have happened instead of the parties attempting to adduce fresh evidence in the Court of Appeal. This would also have avoided the need for an appeal to be brought against the UT’s reliance on judicial notice.

Accordingly, in my judgment, none of the fresh evidence in this appeal represents material which could not with reasonable diligence have been obtained for use at the hearing before the UT. No exceptional circumstances have been identified which would justify a departure from, or flexibility in relation to, the first of the principles in Ladd v Marshall. I see none.

Furthermore, looking at the fresh evidence as a whole, I am not persuaded that, as matters currently stand, it could properly be concluded that the Royal Chelsea Hospital post office was closed on 26 March 2023, so as to neutralise the error of law in the UT’s decision identified above. Essentially, I agree with the submissions of Mr. Lee in para.9 of his supplementary skeleton dated 3 November 2025. I go no further than that.

For these reasons I would refuse the applications to adduce fresh evidence.

For the above reasons I would dismiss the Respondent’s Notice and allow the appeal, ordering that the matter be remitted to the Upper Tribunal before a different constitution for the redetermination of the appellant’s application for an extension of time and for permission to apply for judicial review.

I agree.