The case of KM (Bangladesh) v Secretary of State for the Home Department [2017] EWCA Civ 437 (21 June 2017) raises an interesting, if niche, procedural point.

The case is relevant to parties who

• have had an appeal dismissed by the Upper Tribunal (UT);
• who wish to challenge the findings of the UT on a point of law; but
• who miss the deadline to make the application for permission to appeal against the determination to the Court of Appeal so that the application is not admitted; and
• wish to renew their applications directly to the Court of Appeal

In this case the Court of Appeal gives guidance on how and in what circumstances it will consider renewed applications for permission to appeal where deadlines in the tribunal have been missed.

The initial appeal

The appellant had applied to remain in the UK as a Tier 1 (Entrepreneur) on 6 June 2013. This application was refused by the Home Office because, among other reasons, evidence had been provided which did not include the required information prescribed by the rules.

This decision was subject to an appeal to the First Tier Tribunal (FTT), which was dismissed, although managed to reach the Upper Tribunal due to an unfortunate, but ultimately inconsequential, omission of the word ‘not’ in a key part of the FTT determination. Shortly after this, the Upper Tribunal re-heard the case and confirmed that it should be dismissed on 29 April 2014.

10 months later

On 23 February 2015, KM applied for permission to appeal against the decision of the Upper Tribunal to the Court of Appeal. The deadline for making an application to the Upper Tribunal for permission to appeal to the Court of Appeal is 12 working days: 44(3B)(a)(i) Tribunal Procedure (Upper Tribunal) Rules 2008.

KM’s application for permission to appeal was therefore 9 ½ months out of time.

The appellant asked the Upper Tribunal to use its powers under Rule 5(3)(a) to extend time and accept the application for consideration.  He argued that he had not received the Upper Tribunal’s decision, either at his address or via his lawyers.

This reasoning, however, was not accepted by the Upper Tribunal judge. As a result, the application to the UT for permission to appeal against its own decision to the Court of Appeal was ‘not admitted’.

Jurisdiction of the Court of Appeal

Having definitely received the decision to not admit the application, KM renewed his permission application directly to the Court of Appeal. This application was made within the prescribed time limits for renewal applications of this type.

Underhill LJ identified the jurisdictional issue and the matter was set down for an oral hearing where the key question was identified as follows [9]:

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.

This question is answered by Sir Ernest Ryder, Senior President giving lead judgment [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.

However, having accepted that the Court of Appeal had jurisdiction, Sir Ernest described the merits of the case as hopeless, and that it had no chance of satisfying the second appeals test.

Ozdemir followed

The court did, however, use the case as an opportunity to give some guidance on its role upon receipt of an out of time renewal where the Upper Tribunal application had not been admitted, but where the application for renewal for the Court of Appeal is filed in time.

The Court of Appeal followed a line of cases, the most important of which is Ozdemir v Secretary of State for the Home Department [2003] EWCA Civ 167, which it held bound the court to [34]:

‘…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.

What this means in practice is that, where an application for permission to appeal has not been admitted to the Upper Tribunal on the grounds that it was out of time, an appellant who wishes to renew any such application to the Court of Appeal will need to include an application to extend time explaining why the Upper Tribunal was wrong to refuse an extension.

It is ‘incumbent on this court to make its own decision about the delay in applying to the UT’ holds the court [23], and this will be the case even if the usual Court of Appeal deadline running from the Upper Tribunal ruling is met.

This will presumably mean that, when considering an application, the Court of Appeal will first consider the reason or reasons for its late submission to the UT and then, only if it disagrees with the UT’s decision not to admit the application and grants an extension, go on to consider the substantive issues raised.

The Court of Appeal confirm that failure to make such an application for an extension of time in these circumstances will automatically cause the application for permission to be refused, which was a further reason for the refusal of permission in this case [41].