THE SECRETARY OF STATE FOR THE HOME DEPARTMENT v ELISHA NDWANYI

I shall refer to the appellant as the ‘respondent’ and the respondent as the ‘appellant’, as they appeared respectively before the First-tier Tribunal. The appellant was born on 12 February 1997 and is a male citizen of Rwanda. He appealed to the First-tier Tribunal against a decision of the Secretary of State dated 6 June 2019 refusing his application for international protection. The First-tier Tribunal, in a decision promulgated on 20 December 2019, allowed the appeal on asylum and human rights (Article 3 ECHR) grounds. The Secretary of State now appeals, with permission, to the Upper Tribunal.

At the initial hearing held via Skype for Business on 7 August 2020, I was asked by both parties’ representatives to deal with a preliminary issue arising from the grant of permission of First-tier Tribunal Judge Chohan. Paragraph (1) of the grant of permission states, ‘The application is in time.’ The remainder of the grant consists of the judge’s reasons for finding it arguable that the First-tier Tribunal had erred in law. At the initial hearing, both representatives told me that they agreed that Judge Chohan had been wrong to find that the application for permission to appeal had been made in time. Mr Cole, who appeared for the appellant, submitted that I should find that the application for permission had been out of time, that I should not extend time and that I should decline to hear the appeal accordingly. The respondent submitted that, if I considered it necessary, I should exercise discretion to extend the time for appealing.

The judge’s finding at [1] is strange given that, at Part B of the application, the Secretary of State has given her reasons for applying for an extension of time: ‘Although it might be considered that this application is 4 days out of time, the decision was received over the Christmas holiday/bank holidays where an inadequate amount of staff was available to consider the decision and lodge grounds of appeal and therefore it is requested that in the interests of justice time is extended.’ Following a brief discussion, I adjourned the initial hearing to enable both parties to make further written submissions on Judge Chohan’s decision as to timeliness. Both parties have delivered helpful submissions and the initial hearing was concluded by Skype for Business on 16 October 2020. I reserved my decision.

First, I have considered whether Judge Chohan has simply overlooked the Secretary of State’s application to extend time. At the hearing on 7 August 2020, I told the representatives that, in the Tribunal’s file, there is a copy of the notice of receipt of application for permission to appeal which bears two endorsements. First, there is a sticker placed on the document by a member of the First-tier Tribunal administrative staff and which reads, ‘Dear Sir/Madam. Please find enclosed Application made that the application had been made ‘OOT’ [out of time]. Date due: 06.01.2020. Date Rec’d 07.01.2020’ Adjacent to the sticker is a manuscript note signed by Judge Chohan. This note reads, ‘Xmas bank holidays must be taken into account. Application in time.’ The judge’s note is dated 22 January 2020. Whilst the Secretary of State’s statement in Part B of the application form is somewhat equivocal (‘…it might be considered that…’), I am satisfied that the judge was aware that timeliness was an issue. At paragraph (1) of the grant of permission, he has given his reason why he did not consider it necessary to exercise any discretion as to an extension of time.

The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (‘The Procedure Rules’), paragraph 33(2) provides:

I have not been asked to determine whether the ‘accepted practice’ in the First-tier Tribunal of excluding non-working days applies only to time limits of 5 days or less (as CPR 2.8(4) indeed provides) is legally correct; both parties have made their submissions on the understanding that it is. What is clear, however, is that there is no support in the Procedure Rules for Judge Chohan’s declaration that bank holidays ‘must be taken into account.’

The sticker placed on the file by Tribunal staff was, therefore, correct; the application for permission was one day out of time. The question remains as to what, if anything, the Upper Tribunal can and should do to correct the judge’s error.

First, I have considered whether the Upper Tribunal should, with the support of both parties or otherwise, reverse Judge Chohan’s decision that the appeal was in time. In short, it cannot. In NA (Excluded decision; identifying judge) Afghanistan [2010] UKUT 444 (IAC), the Upper Tribunal considered the question: ‘Does a right of appeal lie to the Upper Tribunal against a decision that a notice of appeal is out of time and not to extend that time?’. By extension, the question posed by Judge Chohan’s decision will have the same answer. The Tribunal in NA held:

Can the Upper Tribunal exercise a discretion as to the extension of time because the First-tier Tribunal has failed to exercise it? The appellant relies on the Upper Tribunal decision in Boktor and Wanis (late application for permission) Egypt [2011] UKUT 00442 (IAC):

The appellant in the instant appeal relies on Boktor and argues that ‘whether to extend time is a discretionary judgment for the relevant judge considering all the relevant circumstances and, in this particular case, Judge Chohan has not exercised that discretion … it is submitted that this case is no different from the established cases where the issue of timeliness has not been considered at all’ [skeleton argument, 15 and 16].

I disagree. First, the approach advocated by the appellant would lead to the procedural problem identified in Samir; if, sitting as a judge of the First-tier Tribunal, I decided the issue of timeliness against the respondent, I would be unable to refuse to hear the appeal in the Upper Tribunal (as the appellant proposes) without depriving the respondent of the opportunity to renew her application for permission to the Upper Tribunal. There is, however, a more fundamental problem with the appellant’s argument. The judge found that no issue as to timeliness arose at all. He decided (wrongly, as it happened) that the appeal was in time. In my view, it is not possible for the Upper Tribunal to ignore and then circumvent the judge’s decision on timeliness simply because it is wrong. The decision is clear and unambiguous. Unlike the Tribunal in Boktor, it is clear from the file note and paragraph 1 of the grant of permission that the judge has considered the reasons given for delay but concluded that these were not relevant. As soon as his decision had been recorded in its final form, Judge Chohan became functus officio; as we shall see at [11] below, it was thereafter not possible for Judge Chohan or any other judge of the First-tier Tribunal to change the decision unless the ‘slip rule’ applies. Equally, it would be wholly inconsistent with the doctrine of functus officio for the Upper Tribunal to ignore a decision on timeliness and to exercise its own discretion on the basis that, because both parties agree that it was wrong, the judge’s decision, in effect, does not exist. By finding that the application for permission was in time, the judge has decided that it was unnecessary to exercise any discretion. This is not a case where the judge has simply overlooked the fact that the application was out of time; on the contrary, he has engaged with the issue of timeliness and has reached an unequivocal decision on that issue. The circumstances here are, perhaps, unusual as we have the judge’s file note but, even if we did not, it is difficult to see how it would be possible to go behind his clear finding at paragraph 1 of the grant that the application had been made in time. It follows that, if a remedy exists, then it is not to be found in the principles of law and practice articulated in Boktor and Samir.

Since both parties agree that Judge Chohan made a mistake, can that mistake be corrected under the ‘slip rule’? Paragraph 31 of the Procedure Rules provides:

The appellant [skeleton argument, 17] accepts that, where a judge has exercised discretion regarding the extension of time unlawfully, then judicial review is the appropriate remedy (for an example, see R (on the application of Onowu) v First-tier Tribunal (Immigration and Asylum Chamber) (extension of time for appealing: principles) IJR [2016]) UKUT 185 (IAC). Judicial review is the only means by which Judge Chohan’s decision to admit the application for permission can be challenged. That remains the case notwithstanding that both the appellant and the Secretary of State agree that the judge was wrong to find that the application had been made in time. As the First-tier Tribunal’s grant of permission has not been disturbed on judicial review, I have proceeded to consider the Secretary of State’s appeal on its merits. Both parties’ representatives made submissions regarding error of law at the initial hearing on 16 October 2020.

There is one ground of appeal:

The respondent accepts that the appellant worked for the WFP. She also agrees that, if his account is found to be true, then the appellant faces a real risk of suffering harm on return to Rwanda (see First-tier Tribunal decision at [64]). Otherwise, the respondent submits that the appellant’s account is inconsistent and unreliable.

The First-tier Tribunal (Judge Cox) [36] agreed ‘with the representatives and believe that my assessment of the expert report will be determinative.’ Judge Cox considers in detail the report of the expert, Dr Joseph Mullen, at [37-54]. He records that the Presenting Officer sought to rely on certain passages of the report in support of his submission that the appellant’s account was implausible. The Presenting Officer noted that the expert had been ‘a little puzzled’ by the appellant’s claim that a highly restricted email should have ‘gone astray’. The Presenting Officer also drew the judge’s attention to the fact that the expert had, despite researching relevant websites, been unable to ‘triangulate’ the death of Mr Bamporiki. Dr Mullen had also not considered it ‘likely’ that, as the appellant claims, the head of the WFP in Rwanda had passed the appellant’s name to the DMI. In the case of each passage of the expert report cited by the Presenting Officer, the judge records the response made by the appellant’s counsel. The judge’s approach throughout is measured and even-handed.

At [56], Judge Cox acknowledges that the appeal was ‘difficult to determine’. He found ‘troubling’ the absence of any evidence regarding the murder of the appellant’s friend and that the expert considered it unlikely that any colleague of the appellant at the WFP would have passed the appellant’s name to the DMI. However, at [58], the judge accepted that the core of the appellant’s account was true and at [59-63] he has given clear and cogent reasons for reaching that conclusion. He noted that the expert had accepted that the DMI may have had agents operating in the office of the WFP and found also that the email had been sent in error. He considered the appellant’s evidence in the wider context of politics in the region (both parties accept that there had been troop movements on the border around the time the email had been sent) and the appellant’s own circumstances; the judge found that the appellant would not have abandoned his job and good standard of living for the uncertainty of life as a refugee had he not genuinely feared for his safety and he also took into account that the appellant had been born in DRC and was a naturalised citizen of Rwanda; that was a relevant factor given the significance of ethnicity in the politics of the region. I reject the respondent’s submission that ‘the decision is lacking in reasons.’

I accept that not every judge would have reached the same findings as Judge Cox on the same evidence. However, that is not the point. Further, I do not consider that the findings of the judge are perverse. Indeed, Mr McVeety, who appeared for the Secretary of State, acknowledged that, on the evidence, there ‘were ways the judge could have allowed the appeal.’ In my opinion, the judge took one such way. He engaged fully with the relevant evidence; his analysis of the expert report, especially those parts which were not obviously favourable to the appellant, is thorough and even-handed. Moreover, the judge did not find in favour of the appellant in the teeth of a negative conclusion from Dr Mullen; the expert unequivocally states at the end of his report [26] that the appellant’s return to either DRC or Rwanda ‘is likely to result in a life-threatening situation.’ Contrary to what is asserted in the grounds, the respondent has been left in no doubt as to why she lost; ultimately, the grounds amount to nothing more than a disagreement with findings available to the Tribunal on the evidence.

Finally, in his oral submissions, Mr McVeety cast doubt on the use by the judge, when discussing the email, of the phrase ‘I cannot exclude the possibility’. Mr McVeety submitted that the judge appeared to have departed from the appropriate standard of proof. I do not agree and in any event, Mr McVeety acknowledged that this challenge does not appear in the grounds of appeal as drafted.

For the reasons I have given, the Secretary of State ‘s appeal is dismissed.