Akhlaq Ahmed Khan v Food Standards Agency

The Appellant submitted an appeal by way of form GRC1 dated 4 August 2025 against the revocation of the Appellant’s Certificate of Competence(CoC) by the Respondent, the Food Standards Agency (“FSA”) dated 2 May 2025.

The application stated that if permission to file the appeal out of time is granted then the Appellant intends to appeal on the following grounds:

Revocation of the CoC – with no prior warning, improvement notice or opportunity for retraining – represents a disproportionate and punitive sanction, particularly where evidence of actual animal suffering is absent or unsubstantiated.

The Appellant was advised by the Tribunal on 3 October that if he wished to apply for an extension of time for filing the appeal, he must submit a form GRC5 with that application. No such form has been received by the Tribunal to date, so I am proceeding to consider on the basis of the documents already submitted whether the appeal should be permitted out of time.

Rule 22(1)(b) of the Tribunal’s Rules provides that an appellant must start proceedings before the Tribunal by sending or delivering to the Tribunal a notice of appeal so that it is received within 28 days of the date on which notice of the act or decision to which the proceedings relate was sent to the appellant. In applying for permission to submit the appeal late, the Appellant is, in effect, applying for relief from the sanction which would ordinarily follow breach of this rule.

The proper approach to deciding whether to admit applications which are out of time was set out by the Court of Appeal in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 WLR 795, Denton v TH White Ltd [2014] EWCA Civ 906, [2014] 1 WLR 3926 and R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1663. The approach was summarised in Secretary of State for the Home Department v SS (Congo) & Others [2015] EWCA Civ 387 as comprising three stages. First, the seriousness of the delay must be assessed. Second, the reason for the delay must be considered. Third, all the circumstances of the case must be weighed so as to deal with the matter fairly and justly.

The relevant principles from this case law were set out by the Upper Tribunal (Immigration and Asylum Chamber) in R (Onowu) v First-tier Tribunal (Immigration and Asylum Chamber) (extension of time for appealing: principles) (IJR) [2016] UKUT 185 (IAC). In essence, an application for extension of time for doing something in proceedings is an application for relief from the sanction which would ordinarily follow from non-compliance with that step. The principles set out in Onuwu have recently been confirmed as applying to the General Regulatory Chamber by the Upper Tribunal in Osborne v Information Commissioner & the Civil Aviation Authority (UA-2025-000826, 13 August 2025).

The first thing I must therefore consider is whether there is a serious and significant breach. Filing an appeal 94 days after the statutory time for doing so is a serious breach and significant in the context of this litigation, insofar as the litigation would not be able to proceed at all if permission to file the appeal out of time was not granted. I must therefore proceed to consider the second and third limbs of the test.

The second stage of the test is to consider whether there is a good reason for the breach. The reasons given by the Appellant were as follows:

“The CoC revocation letter stated that appeal to the Tribunal must be lodged within 28 days, ie by 30 May 2025.

In response the appellant sought resolution through the FSA’s non-statutory Internal Review Procedure, submitting a formal case for reconsideration on 9 May 2025. This was undertaken in good faith as a constructive alternative to immediate legal action.

The FSA’s response to this internal appeal was not issued until 5 June 2025 by which time the 28-day deadline had expired. This delay effectively frustrated the appellant’s right to appeal by encouraging an internal route and failing to respond in time for a Tribunal application to be properly lodged.

The failure by the FSA to respond within the original appeal period is no fault of the appellant. It would be procedurally unjust and potentially unlawful to deny Mr Khan access to the Tribunal due to the delay of the very body whose decision he seeks to challenge.”

The decision notice dated 2 May 2025 which the Appellant filed with his form GRC1 gives the following information about rights of review and appeal:

“You are entitled to apply for the decision to be reviewed. A non-statutory internal review of the revocation will be carried out within 14 days of the date of this letter by FSA Veterinary managers, in cases where you provide evidence that you have to support a submission to overturn this decision to revoke your CoC. To initiate the review process, your evidence should be provided to the OV within 7 days of the date of this letter…Please note that this is separate to and independent of the legal right to appeal referred to below and does not change the legal time limit to appeal. (emphasis added)… Under Regulation 22 of WATOK, you have the right to appeal the decision to suspend or revoke a Certificate of Competence…detailed in this letter. The right of appeal is to the First-tier Tribunal. You must lodge any appeal with the Tribunal within 28 days of the date of this letter.”

The main reason on which the Appellant relies is the delay by the FSA in completing its internal review. However, when viewed in the context of the information in the decision notice, the Appellant was clearly notified in writing both of the deadline for applying to the Tribunal and the fact that internal review proceedings were separate from appeal to the Tribunal and would not change the time limit for an appeal. What appears to be overlooking this information and deadline does not seem to me to be a good reason for not complying with the time limit for an appeal. The fact that the Appellant was not represented at that stage also does not by itself present a good reason.

Even if I am wrong on this, the Appellant has not provided any explanation of the delay in filing an appeal once the internal review proceedings were completed on 5 June 2025. A further 60 days elapsed between the Appellant receiving the outcome of an internal review and the appeal being filed.

I have also taken into account the third stage of the test, which involves considering all the circumstances of the case.The two important factors identified in Onuwu were (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. Other relevant factors suggested by the case law include consideration of whether the application was made promptly, but not the substantive merits of the case. I consider that the application was not made promptly after conclusion of the internal review and that no reason for not doing so was advanced. Taking all the circumstances into account and considering the overriding objective to deal with cases fairly and justly, I am not persuaded that it would be appropriate or proportionate to allow the Appellant to file his notice of appeal 94 days after the deadline without good reason.

For all these reasons, I refuse the Appellant’s application for the appeal to be admitted out of time and accordingly dismiss the appeal as being out of time.