KM (Bangladesh) v Secretary of State for the Home Department [2017] EWCA Civ 437

[2017] EWCA Civ 437Case No C7/2015/1360
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL
Upper Tribunal Judge Kekic
IA/24868/2013
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/06/2017
Before
THE SENIOR PRESIDENT OF TRIBUNALSLORD JUSTICE UNDERHILL
Between
KM (Bangladesh)AppellantSecretary of State for the Home DepartmentRespondent
Mr Iqbal (instructed by Reza Solicitors) for AppellantMr Russell Fortt (instructed by Government Legal Department) for Secretary of StateHearing Hearing date: 10 May 2017
Judgment ApprovedSir Ernest Ryder, Senior President:
[1]This is a renewed application for permission to appeal against the decision of the Upper Tribunal (UT) made on 29 April 2014, dismissing the appellant’s immigration appeal from the First-tier Tribunal (FTT). The application for permission to appeal to this court from the UT was made in time but the application to appeal to the UT was well out of time. This is a common problem without an easy solution given the many causative factors that may be relevant to delay.[2]The appellant is a national of Bangladesh, born in 1986. He was granted leave to remain in the United Kingdom (UK) as a Tier 4 student from 1 January 2008. His leave was extended to 26 November 2012 when he became a Tier 1 (Post Study Work) migrant. On 23 October 2012 and before the expiry of his leave, he applied for further leave to remain as a Tier 1 (Entrepreneur) migrant.[3]The appellant’s entrepreneur application was refused by the Secretary of State on 6 June 2013. The reason given was that the appellant had not demonstrated that he was engaged in the required level of business activity. He had submitted advertising material that did not include his name or the name of his team member. The business contract that he relied upon did not include contact details of the other party. These failings meant the appellant had not complied with paragraphs 41-SD(c)(iii) and 41-SD(c)(iv) of Appendix A to the Immigration Rules.[4]The appellant appealed to the FtT where the appeal was dismissed by Judge Lawrence on 11 October 2013. The appellant submitted to the FtT new advertising material and a new contract but Judge Lawrence held that the question for the FtT was whether or not the original documents were compliant with the Rules and hence any subsequently disclosed material had to be relevant to that question. The new material was not relevant to that question. The FtT came to the conclusion that the original documents did not contain essential prescribed features. The FtT also held that article 8 of the European Convention on Human Rights (the Convention) was not engaged because the appellant merely preferred to remain in the UK to obtain business experience.[5]Permission to appeal to the UT was granted by Judge Lever on 16 January 2014 on the basis of an inconsistency in the language used by Judge Lawrence in refusing to admit the new documents. In the UT, deputy Upper Tribunal Judge Davey dealt with that issue appropriately by identifying a typographical error: the omission of the word ‘not’ which if inserted would make the FtT’s decision internally consistent. Judge Davey dismissed the appeal on 29 April 2014 for the reasons given by the FtT and for the additional reason that although the Secretary of State could have made a request under paragraph 245AA of the Immigration Rules for the appellant to deal with the omissions identified, the appellant did not in evidence demonstrate that he had documents at the time of the Secretary of State’s decision that could have satisfied the requirements under Appendix A of the Rules. Furthermore, Judge Davey agreed with the FtT in holding that the appellant had not established that his removal would engage article 8 of the Convention.[6]The UT decision was promulgated on 29 April 2014 but it was only on 23 February 2015 that the appellant applied to the UT for permission to appeal to this court: a delay of approximately ten months. The Grounds for the permission to appeal application to the UT did not identify any specific legal error in the UT’s decision. Instead, the Grounds refer to “inconsistencies” in the FtT’s decision, and adopted the grounds of appeal that the appellant had previously relied upon in relation to the FtT decision. The appellant also filed a statement explaining the reasons for his delay in applying for permission to appeal. In essence, he says that he first knew about the UT decision when it was sent to his (new) solicitors in February of 2015.[7]On 25 March 2015 Upper Tribunal Judge Kekic ‘refused to admit the PTA application’ because the application was out of time. In her reasons she rejected the basis for the explanation given by the appellant for the delay in making an application for permission to appeal to the UT and referred to the lack of underlying merit in the appeal in the following terms:
“The Tribunal file shows that the notice of hearing was properly served on both the appellant at Flat 4, 47 Bignold Road and his representatives at 108A Whitechapel Road on 7 March 2014 as was the determination on 29 April 2014. I do not accept that all four items of correspondence could have gone astray. In the circumstances I refuse to admit this application which in any event could not have succeeded given the sustainable findings of the Tribunal.”
[8]Less than one month later, on 24 April 2015, the appellant made an application for permission to appeal to this court which was arguably in time. A new set of Grounds were filed which focussed on explaining the time delay but did not identify any substantive legal error in the UT’s decision and did not make any application for an extension of time in respect of the delay. The new Grounds again relied upon the original Grounds of appeal from the FtT decision.[9]My Lord, Underhill LJ, dealt with the application on the papers and indicated that if a jurisdictional issue identified on the papers was to be pursued, then it should be considered at an oral permission hearing. The issue characterised by the parties is whether an appeal lies to the Court of Appeal where the UT has dealt with the application not by refusing permission but instead by refusing to admit the application because it is out of time.[10]My Lord’s provisional view was that save for that one question there was no issue of principle in the appeal sufficient to satisfy the second appeals test. He pointed out that the appropriate way to remedy the alleged injustice of the lack of notification of the FtT decision would be to apply under rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008 to set aside the UT decision (on the basis, if it was the case, that there is evidence that a document was not sent or received at an appropriate time). Given the terms of rule 43, I would respectfully agree with my Lord’s provisional view. It is difficult to see what basis there could be for a second appeal to this court where that procedural opportunity has not been taken.[11]As to the underlying merits of the appeal, my Lord Underhill LJ saw no error in the decision of

Judge Davey:

“The truth is that the Applicant failed to lodge the correct documents in support of his application, and the documents that he put in before the FtT did not solve the problem.”
[12]The issues raised in the arguments that the court has read and heard are as follows:a. Whether this court has jurisdiction to hear the application;b. Whether there are any merits on the facts and, if so whether there are any prospects of success in satisfying the second appeals test; andc. If the court has jurisdiction to consider the permission application, whether there is a solution to the issue of delay.[13]In written submissions both the appellant and the Secretary of State sought to persuade this court that it had no jurisdiction to hear this application on the basis that the decision of Judge Kekic was procedural and accordingly only susceptible of judicial review if it is wrong. In particular the Secretary of State submitted that a procedural decision comes within the class of excluded decisions that cannot be appealed by reason of paragraph 3(m) of the Appeals (Excluded Decisions) Order 2009.[14]In oral argument both Mr Iqbal for the appellant and Mr Fortt for the Secretary of State very helpfully took the court to the relevant tribunal and court rules. In the process, the jurisdiction in this court was identified and that is now common ground with the consequence that the jurisdictional issue identified on the papers falls away.[15]The relevant paragraphs of the Tribunal Procedure (Upper Tribunal) Rules 2008 are as follows. When a party applies to the UT for permission to appeal to the Court of Appeal, the appropriate period within which the written application must be received by the UT is 12 working days after the decision appealed from: rule 44(3B)(a)(i). The UT has the power to extend time: rule 5(3)(a). Where no application is made to extend time or the UT declines to use that power, the UT must refuse the application for permission to appeal: rule 44(6)(b).[16]On the facts of this case, the application for permission to appeal was made nine and half months out of time. Judge Kekic did not accept the reasons for the delay. Her reasoning admits of only one conclusion, namely that she declined to extend time. In that circumstance the order that she made to refuse to admit the application for permission to appeal must be read as an order refusing permission as that was what the UT Rules required her to do.[17]If I am right and the application for permission was refused by the UT then this court has jurisdiction to hear it afresh. An appellant who seeks to appeal a decision of the UT to the Court of Appeal which is not an excluded decision, and the refusal of permission to appeal is not excluded, has 28 days from the date on which the UT’s decision on permission is sent to the appellant to file an appellant’s notice: CPR PD52D paragraph 3.3. This is a consequence of the special provisions relating to UT decisions that are contained in that Practice Direction. The appellant in this case complied with that time limit.[18]I shall come back to the question whether this was the only relevant time limit in the circumstance that the appellant had failed to make an application to extend time to the FtT, the UT or to this court. It should be noted that absent the special time limit that applies to appeals from the UT, the general time limit for permission to appeal to the Court of Appeal is much shorter ie in the absence of a direction from the tribunal below or this court, the appellant has 21 days after the date of the substantive decision in the UT which the appellant wishes to appeal: CPR 52 rule 12(2).[19]Dealing then with the merits. The appellant concedes that at no time was he able to satisfy the provisions of Appendix A of the Immigration Rules. Instead, he relies on a submission that his lack of compliance was “deminimis”. In support of his argument he submits that a) the contract, although missing the customer’s contact number, was still valid under English law and b) the business is still successfully operating even though the advertisement for it omitted the appellant’s name.[20]The appellant submits that the errors are sufficiently trivial to be comparable to a hypothetical example of deminimis given by Dyson LJ, as he then was, in MD (Jamaica) v SSHD [2010] EWCA Civ 213 which was where an applicant, after 10 years’ residence in the UK, applied to the Home Office for indefinite leave but submitted the application one day late.[21]I am not persuaded that the lack of compliance in this case is a valid comparison with the example given in MD (Jamaica). This case involves the significance of substantive non-compliance ie the lack of evidence of active trading of the appellant’s business whereas MD (Jamaica) is a question of the significance of procedural non-compliance. Having regard to the purpose of the Immigration Rules, there is significance in not being able to answer the question whether the business is trading or simply hypothetically able to trade.[22]I have no doubt, therefore, that the underlying merits of an appeal from the FtT’s decision on the facts are hopeless. If and in so far as the appellant still relies on the permissive provisions of paragraph 245AA of the Immigration Rules, enabling the Secretary of State to request further information, this court has held that such a provision need only be exercised by the Secretary of State where there were “sufficient reasons to believe that any evidence requested existed” (see Rodriguez v SSHD [2014] EWCA Civ 2). Neither the Secretary of State nor this court was given any basis to believe that such evidence existed. Accordingly, the second appeals test could not be satisfied by this appellant.[23]As to the question of extension of time to make an application for permission, the fact that the appellant was well out of time and the reason for the same was resolved on the facts by Judge Kekic. This court has been taken through the materials that could have formed the basis for an application for review under rule 35 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 or rule 43 of the UT Rules (above). Although the appellant has not made an application to this court to extend time to apply for permission to appeal it is incumbent on this court to make its own decision about the delay in applying to the UT.[24]The materials focus on whether both the appellant and his then solicitor received notification of the FtT’s decision from the tribunal. The appellant says that he did not and neither did his former solicitor. Only when a new solicitor practising from the same address as the former solicitor requested the determination from the FtT many months later did the appellant receive it. Judge Kekic did not accept the appellant’s account and she had the opportunity to scrutinise the documents, the tribunal file and the witnesses. I am not persuaded that the notice of decision was not delivered to the appellant and his former solicitor for the reasons given by Judge Kekic.[25]In the circumstance that the jurisdiction question identified on paper by my Lord has now been answered, ie this court has jurisdiction to entertain an appeal against the UT’s decision in this case, there appears to be no important point of principle or practice that would justify the grant of permission. That disposes of the appeal but given the frequency with which permission is sought of this court when an appellant is out of time in the tribunal below, it is convenient to consider what this court’s response should be. I am grateful to counsel for both parties for dealing with submissions on this question during the hearing.[26]The leading case on the question is Ozdemir v Secretary of State for the Home Department [2003] EWCA Civ 167. It is a permission decision of a two judge court which gave leave at the time to cite it as authority. Although the tribunal rules were different in 2003 and Ozdemir involved the predecessor tribunal to the existing First-tier and Upper Tribunals, namely the Immigration Appeal Tribunal, a point of principle was identified which has subsequently been followed by this court.[27]In Ozdemir, the appellant had been unsuccessful in the IAT. She applied to the IAT for permission to appeal to the Court of Appeal but her application was a month out of time. The then existing tribunal rules contained no provision to extend time. The IAT determined that it lacked jurisdiction to hear the permission application, and that accordingly it could neither grant nor refuse it. The question was whether or not this excluded the Court of Appeal’s jurisdiction to hear the appeal given that under paragraph 23 of schedule 4 of the Immigration and Asylum Act 1999 the Court of Appeal’s jurisdiction only arose once the IAT had “refused” a permission to appeal application.[28]The Secretary of State argued that the Court of Appeal’s jurisdiction had not been triggered, and that the appellant’s only mechanism for challenging the IAT’s determination would be by judicial review. Mance LJ found this proposition “unattractive” on the basis that recourse to judicial review would weaken finality and cause extra delay. Mance LJ reasoned that paragraph 4(1)(b) of schedule 4 of the 1999 Act provided a power in the Lord Chancellor to make rules enabling a tribunal to dismiss an appeal for procedural reasons. He saw this as evidencing a Parliamentary intention that procedural failures would lead to refusal.[29]Mance LJ concluded that the IAT’s determination should be read as a refusal and that the IAT’s way of expressing this refusal should be read as a reflection of the fact that the IAT was refusing the application for procedural reasons. He then went on to consider the question relevant to these proceedings that is, how the Court of Appeal should approach the question of extension of time?[30]The question was answered by Mance LJ at [37] to [42] as follows:a. If the PD to CPR 52 which sets out the special provisions relating to appeals from the IAT is construed in a similar way to the right of appeal provisions in schedule 4 of the 1999 Act, an applicant could always be in time to seek permission to appeal to the Court of Appeal however out of time the applicant had been in seeking permission to appeal from the tribunal;b. That cannot be right. The concept of refusal in the CPR PD is not necessarily the same as in the 1999 Act. The PD refers to the tribunal rules which provide for two ways in which an application for permission to appeal may be refused: either on the merits or on the basis of lack of jurisdiction. The PD relates to the former not the latter;c. If the special provision of the PD does not apply, the general rules relating to appeals remain which provide for a fixed time within which an application for permission to appeal must be made from the substantive decision. That time period runs not from the AIT’s decision on permission to appeal but from the substantive AIT decision and unless extended it follows that the period within which an appellant must apply for permission to appeal a substantive decision to the court of appeal will have expired.[31]I will consider the point of principle that arises and the examples that this court has followed the same in due course. It is first important to note that since Ozdemir the FtT and the UT have been created. A right of appeal to this court from the UT is provided for in section 13 of the Tribunals, Courts and Enforcement Act 2007. For present purposes, all that needs to be said is that by section 13(4) permission to appeal may be given by the UT or this court on an application by a party and by section 13(5) an application to this court may only be made if permission has been refused by the UT. Accordingly, prior refusal by the UT is still the trigger for this court’s consideration of a permission application.[32]As I have already remarked, the UT now has power to extend time to consider a permission application (rule 5(3)(a) of the UT Rules) but if no application is made to extend time or the UT declines to exercise that power, the UT must refuse the application (rule 44(6)(b) of the UT Rules). The procedural position is therefore that which Mance LJ was seeking to address ie there is no jurisdiction in the UT to do other than refuse a permission application which is out of time and for which an extension of time has not been granted.[33]The procedural provisions identified by Mance LJ are repeated in the modern rules and practice directions with modifications that are not relevant to this appeal other than the fact that the time limits have changed. The special provision for appeals from the UT to this court is to be found in CPR PD52D at paragraph 3.3. That replicates paragraph 21.7 of CPR 52PD-087 save that the time period is now 28 days rather than 14 days from the date on which the UT decision on permission is sent to the appellant. The general rule is 21 days from the substantive decision by reason of CPR 52 rule 12.2 which replicates the former CPR 52 rule 4(2)(b) save that the time limit used to be 14 days.[34]The point of principle which Mance LJ identified is that this court should enforce the time limits provided for in the tribunal rules to prevent them from being substantially undermined. To permit otherwise would enable a party to wait months or even years before making a decision to appeal an adverse immigration determination while continuing to take advantage of the delay that would be the consequence. This court should rigorously apply the tribunal rules so that permission to appeal will not be granted if an appellant has not made application for an extension of time to appeal a determination where the application is otherwise out of time.[35]Ozdemir was applied by Brooke LJ in Yacoubou v SSHD [2005] EWCA Civ 1051. In Yacoubou a three judge court considered two permission to appeal applications together. Brooke LJ framed the issue before the court as follows:
“These two applications for permission to appeal to this court and for an extension of time were listed together so that the court could have the opportunity to revisit its earlier decision in Ozdemir v Secretary of State for the Home Department [2003] EWCA Civ 167 ( Ozdemir ), within the new statutory regime which includes both the formation of the new Asylum and Immigration Tribunal (AIT) and also the now quite well-established fast-track procedures for handling a certain category of asylum-seeker.”
[36]Brooke LJ noted that the statutory wording in Ozdemir was “the same for all practical purposes” as that in the case before him. His reasoning was as follows:
“[6] No party who appears before the court, including the Secretary of State, have made submissions to us other than that we should follow Ozdemir. If we did not follow Ozdemir, the consequence would be, no doubt, in a number of cases that an application for permission to apply for judicial review in the High Court would have to be made, with a consequent oral hearing in the High Court and perhaps a consequent application for permission to appeal to this court, leading to the cost and delay which has disfigured our system for processing challenges to asylum decisions in the past. In my judgment, this court should regard itself as bound by the decision of the Court of Appeal in Ozdemir.”
[37]He concluded at [7] and [10]:
“[7] … [The decision in Ozdemir] is a satisfactory conclusion to come to, particularly as it is one which is fully supported by the Secretary of State because it does set out a workable way in which the Court of Appeal and practitioners can approach these cases where, for whatever reason, an application for permission to appeal was not lodged with the IAT in time.” […] “[10] In any event, if the application for permission to appeal is not made in time, every day that passes from the time that the AIT is without jurisdiction is likely to weaken the chances of this court being willing to grant an extension of time. Parliament has made clear its wish that applications for permission to appeal to this court should be made promptly. This court will do nothing to thwart the wish of Parliament. Of course there may be those exceptional cases where it would be a manifest injustice, on account of the particular facts, if the court would not be willing to entertain an appeal out of time. But those are likely to be exceptional cases.”
[38]Ozdemir and Yacoubou were cited by Brooke LJ in YD (Turkey) v SSHD [2006] EWCA Civ 52, [2006] 1 WLR 1646. He described those decisions as having the following result:
“[6] In short, it is now settled that if an application for permission to appeal to this court is not filed with the IAT during the prescribed ten-day period, this court will nevertheless have jurisdiction to entertain an “out-of-time” application so long as the applicant has first applied to the IAT and been turned away on the grounds that it no longer has any jurisdiction to grant relief.”
[39]In A v SSHD [2006] EWCA 956, a three judge court refused the appellant’s application for an extension of time for permission to appeal in similar circumstances. Pill LJ noted that the court had jurisdiction to hear the application, the court followed Ozdemir, Yacoubou and YD (Turkey) and held, on the facts of the case, that it would refuse the application for an extension of time and hence the permission application because the delay had not been satisfactorily explained.[40]I am persuaded that the principle in Ozdemir should be applied to the application in this case for two reasons: a) it has been treated as binding by this court since it was decided and there is neither material difference in the rules and practice directions to distinguish it nor any argument put before this court to regard it as per incuriam, and b) the legal policy underscoring the decision remains sound, namely that tribunal rules are to be complied with unless application is made for good reason and this court should enforce that principle.[41]If the principle in Ozdemir is applied, the application for permission to appeal in this case must be refused for the additional reason that no application has been made to this court to extend time and it necessarily follows that the absence of any reason to explain the delay that occurred is fatal. If my Lord agrees, I would refuse permission and dismiss the appeal. I would give permission to report and rely upon this judgment.

Lord Justice Underhill:

[42]I agree that permission to appeal should be refused. My reasons are substantially the same as those given by the Senior President, but I will shortly summarise them in my own words.[43]First, I think it is clear that the Court of Appeal has jurisdiction to entertain this appeal. The question-mark over whether that was the case derived from the fact that Judge Kekic used the language of “refusing to admit” the application for permission to appeal, rather than simply refusing it. I agree with the Senior President (see para. 15 of his judgment) that despite that language she must in fact, given the terms of rule 44 (6) of the Upper Tribunal Rules, be taken to have been refusing the application; and an appeal lies to this Court where an application for permission has been made and refused (see para. 17). I suspect that in using the language that she did the Judge had in mind rule 22 (6) (b). This provides that in the case of an out-of-time application to the Upper Tribunal for permission to appeal from the First-tier Tribunal, where an application for an extension is not made or is refused the Upper Tribunal must “not admit” the application. But, as appears from the Senior President’s judgment, different language is used in the governing applications for permission to appeal to the Court of Appeal.[44]The next question is what is the relevance to the application for permission in this Court of the fact that the prior application to the Upper Tribunal was made out of time. I at first thought that that prior delay had to be treated as irrelevant because para. 3.3 of the Practice Direction to rule 52 provides that time for applying for permission to appeal to this Court from the UT runs from the date of notification of “the Upper Tribunal’s decision on permission to appeal”. However, that produces the very unsatisfactory result that the prior delay is wiped from the slate as long as the application to this Court is in time. As the Senior President points out, in Ozdemir the Court was prepared to adopt a purposive construction of the rules/practice direction governing appeals from the Immigration Appeal Tribunal, which were broadly similar in structure, in order to avoid that result. The then practice direction provided for time to run from the date of notification “of the Tribunal’s decision to give or refuse permission to appeal under [the then rules]”. Mance LJ held at para. 40 of his judgment that the reference to a decision “to give or refuse permission” was only to decisions on the substantive merits rather than to decisions based on non-compliance with time limits, so that the special rule did not apply. In my view it is no more difficult to apply the equivalent purposive construction to the phrase in the current practice direction, namely “the Upper Tribunal’s decision on permission to appeal”. It is indeed inherently unlikely that those responsible for the wording of the current Practice Direction intended to produce the very result which this Court in Ozdemir (and indeed the subsequent decisions identified by the Senior President in which it has been followed) regarded as unacceptable. The result produced by applying an Ozdemir approach to the current rules/practice direction can be summarised as follows:(1) The special time limit for appeals from the UT in para. 3.3 of the Practice Direction does not apply where the UT has refused permission on the basis of non-compliance with time-limits rather than on the merits.(2) Instead the ordinary time limit in (now) CPR 52.12 (2) applies.(3) Since ex hypothesi the application to the UT was out of time the application to the CA will be even more so, but the CA can grant an extension under CPR 52.15 if satisfied that the missing of the original deadline (and any subsequent delay) was justifiable. This will involve considering the same matters as the UT will have done, if it refused an extension; but it is not, as such, an appeal from the UT’s decision.[45]That being so, it is necessary to ask whether the Applicant has shown a good reason for his delay in applying to the Upper Tribunal for permission to appeal to this Court. We are not reviewing the decision of Judge Kekic about the delay in applying to the UT but are making our own decision. However, we ought to give considerable weight to what she decided, and why, for the reasons given by the Senior President at para. 24 of his judgment.[46]I have not found the question whether there was good reason for the delay entirely straightforward. It is clear from the contemporary correspondence, of which I need not give the details, that the appellant’s solicitors were genuinely unaware that the UT had made a decision and were pressing UKBA for a decision, receiving some confused and misleading replies. This is not, therefore, a case where the time limit was missed as a result of insouciance. On the other hand, there is obvious force in Judge Kekic’s point that it is hard to accept that both the notice of the hearing and the notice of decision had failed to be delivered not only to the solicitors but also to the appellant. The more likely explanation is that they were lost or overlooked by the solicitors and the appellant personally, in which case the delay is their fault. As I say, it is right to attach weight to the conclusion of Judge Kekic to that effect, even if it was rather more succinctly expressed than I would have liked. In the end, however, the point is not crucial because the appeal to the UT was bound to fail on the merits, for the reasons I give below.[47]It seems to me that even if the application was in time it could not satisfy the second appeals test. Even if there was an error of law by the FtT or the UT, it raises no question of principle or practice; nor is there any other reason why the appeal should be allowed to proceed. The fact that the appellant was not represented at the UT cannot be such a reason since the right route to remedy any injustice arising out of non-service of the notice of hearing was to apply under rule 43. Nor am I satisfied that there was an error of law in the substantive reasoning, for the reasons quoted from my original refusal at para. 11 of the Senior President’s judgment and amplified by him at paras. 19-22.

Cited in 2 later judgments