Tribunal issues updated guidance with respect to applications for permission to appeal

The Upper Tribunal (IAC) has published updated guidance for judges considering whether to grant permission to appeal from a determination of the First-tier Tribunal (IAC). The guidance is extensive and so a helpful shorthand guide has been prepared for practitioners and those seeking to represent themselves.

The guidance states that its purpose is to “assist judges in their tasks by drawing attention to case law and commonly occurring issues, as well as placing reliance on the experience of the judges”.

It signifies the Tribunal (both FtT and UT) heading towards a stricter approach to enforcement of their procedural rules. Practitioners will be aware of a recent flurry of cases in which the Upper Tribunal has emphasised the importance of compliance with its procedural rules by all parties, including the Secretary of State for the Home Department.

The guidance covers a number of procedural matters but a significant portion of the guidance is dedicated to compliance with time limits on appealing, and the remedies available to an appellant should they fail to comply with the time limit(s). A summary of the guidance is provided below.

Timeliness of the application for permission to appeal:

The guidance separates the steps that the FtT and the UT should take respectively.

First-tier Tribunal:

The FtT judge must first consider whether the appeal has been received in time (within 14 days if in country, or 28 days if out of country). Where an application is received late, the guidance acknowledges that there is no requirement in the procedural rules to refuse such an application unless it is in the interests of justice to do so:

“Rule 33(2) of the FtT Rules provides that an application for permission must be received no later than 14 days (or, if the person is outside the United Kingdom, 28 days) after the date on which the party making the application was sent written reasons for the decision1. Unlike the position under the previous FtT Rules, the 2014 Rules do not contain a specific general requirement for the FtT to refuse to admit an application for permission to appeal which is received late, unless the interests of justice otherwise require.The only situation where the FtT Rules impose such a requirement is where an application for a written statement of reasons for the decision under challenge has been, or is, refused because that application was received out of time (FtT rule 33(7)).”

As all cases appearing before the FtT will engage with human rights and/or protection issues it will be interesting to see how the FtT now deals with applications for permission to appeal that are made out of time.

Where a Judge decides not to extend time, the FtT can refuse to admit the “late” application rather than refuse permission pursuant to Bhavsar (late application for PTA: procedure) [2019] UKUT 196 which provided:

“(1) There is nothing in the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 that prevents the First-tier Tribunal from refusing to admit an application for permission to appeal to the Upper Tribunal, where the application is made outside the relevant time limit and the First-tier Tribunal does not extend time.

(2) The appropriate course, in the case of such an application, is for the First-tier Tribunal to refuse to admit it. This will mean that any subsequent application to the Upper Tribunal in the case for permission to appeal to that Tribunal will be subject to rule 21(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008, whereby the Upper Tribunal must only admit the application made to it (whether or not that application was in time) if the Upper Tribunal considers it is in the interests of justice for it to do so.”

In such circumstances the guidance in Bhavsar makes it clear that the appellant would have to demonstrate to the UT that it is in the interests of justice to admit the application for permission to appeal.

Upper Tribunal:

Firstly, like the FtT, the UT must ascertain whether the application for permission to appeal has been received in time (no later than 14 days after the notice of refusal of permission was sent; or one month if the appellant is outside the United Kingdom). Where an appellant is out of time they should make an application for an extension of time. However, if an appellant fails to make an extension of time application and permission is granted, the failure to seek an extension of time does not invalidate the grant of permission to appeal pursuant to A (Bangladesh) v SSHD [2016] EWCA Civ 651.

If the original application to the FtT was not admitted because it was not made in time, as stated above the renewal application to the UT must first overcome rule 21(7) of the Upper Tribunal Procedural Rules.

The test to be applied when considering whether to grant an extension of time:

Where discretion is sought from the either the FtT or the UT to extend the time limit for seeking permission to appeal, the Judge is to follow the test set out in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537; Denton v White [2014] EWCA Civ 906 and R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633.

The test sets out a three stage approach that the Courts adopt where a party is seeking relief from sanctions. The cross-pollination of the Mitchell and Denton test from the CPR to the Tribunal guidance demonstrates a clear direction towards more formality in immigration appeals. One would suspect this is due to the Tribunals’ growing frustration at the lack of adherence to, and cavalier attitude towards the procedural rules and directions made by the Tribunals.

In summary the Mitchell and Denton test would apply as follows:

1. Assess the seriousness or significance of failure to comply with the time limit.
2. Consider whether there is a good reason for the failure.
3. Evaluate all the circumstances of the case, so as to deal justly and proportionately with the application.

The Tribunal guidance expounds in detail how the test is to be applied:

“Identifying and assessing the seriousness or significance of the failure to comply with the time limit. 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.

Considering whether there is a good reason for the delay. If so, the judge will be likely to decide that relief should be granted. The important point made in Denton is 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.

The judge must evaluate all the circumstances of the case, so as to deal justly with the application. The need for litigation to be conducted efficiently and at proportionate cost is a particular factor. The substantive grounds will be relevant only if they are very strong or very weak.”

It is clear that it is open to judges to disregard minor failings. For instance, if an application were a day late and reasons were provided for this, one would expect that an extension of time would be granted. However, it is still a matter for the individual judge and lengthier delays could well struggle. In Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 60 (IAC) the Upper Tribunal stated that the longer the period of non-compliance, the stronger the reasons to extend time will need to be.

The strength of the grounds will only be a matter of significance in cases where an error of law is clearly made out on the face of the grounds of appeal. One would expect that such cases would not be commonplace; 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):

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. [46]”

Warning given to appellants and the SSHD:

There is a clear warning that the onus is on the party seeking the extension to justify the exercise of discretion:

“The default position is that an extension should not be granted; it is for the party seeking it to justify the exercise of discretion. The procedural rules also require an explanation for delay; in its absence, it is not for a judge to speculate as to what that might be.”

There is no special rule for the SSHD. The guidance refers to the decision of 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), in the following terms:

“There is no merit in constructing a special rule for public authorities; they have a responsibility to adhere to the court’s rules even if their resources are ‘stretched to breaking point’ [42];

A solicitor or public body having too much work will rarely be a good reason for failing to comply with the rules [42];

Particular care needs to be taken in appeals concerning claims for asylum and humanitarian protection to ensure that appeals are not frustrated by a failure by a party’s legal representatives to comply with time limits. The nature of the proceedings and identification of responsibility for a failure are matters to be considered at the third stage of the process [42];

The inability to pay for legal representation cannot be regarded as providing a good reason for delay [43], nor can the fact that that the party is awaiting a decision on legal aid.”

Conclusion:

The guidance is a clear statement from the Tribunal that it expects both parties to comply with the procedural rules.

Practitioners and litigants in person alike must ensure they are fully aware of the guidance when seeking permission to appeal. The guidance is very useful in drawing together the relevant provisions of the procedural rules, the applicable principles and recent case law.

It is clear though, that the Tribunals expect the procedural rules to be respected. All those with business before the Tribunals are on notice to pay closer attention to the procedure rules. Human rights considerations will not save the day every time.

Good practice guide:

1. When an appealable decision is received, it is imperative that you immediately check the time limit for appeal to ensure the deadline is not missed.
2. If the deadline has been missed make an application for an extension of time.
3. Provide submissions and evidence to support an application for an extension of time.
4. Vague explanations are likely to be viewed with scepticism and are less likely to result in the grant of an extension of time.
5. A detailed explanation as to exactly how the delay came about ought to be provided.
6. Any explanation ought to be made by way of a witness statement or on letter headed paper by the legal representative.
7. Finally, every effort must be made to provide independent documentary evidence to support the application for an extension of time. For example, if someone has been unwell there should be evidence to confirm the illness.