The Court of Appeal failed to seal the applicant’s notice in a case, resulting in an almost two year delay. The applicant was asked to make the application again and request an extension of time. When he did so there was then incredibly another two year delay in the Court of Appeal office sealing the application. The case is Arifuzzaman Rana v First-Tier Tribunal (Immigration & Asylum Chamber) [2024] EWCA Civ 1211. The Home Secretary was an interested party in the case, having made the underlying decision that was being challenged.

Background

The applicant is a national of Bangladesh who has been in the UK since May 2007. He had leave until 22 December 2015. On 21 December 2015 he applied for leave to remain on family/private life grounds. This was refused in September 2016 with an out of country appeal only.

The applicant then applied for indefinite leave to remain on the basis of ten years continuous lawful residence under paragraph 276B of the immigration rules. Further representations were made on 25 April 2017.

On 22 June 2018 the application was rejected as the applicant did not have ten years of continuous lawful residence. It was also not accepted that there were exceptional circumstances such that refusing to grant leave would amount to a breach of article 8. The Home Office concluded by saying that the submissions did not amount to a fresh claim, meaning that the applicant did not have the right of appeal against the decision.

The applicant brought a judicial review of the refusal and at the hearing it was suggested by counsel for the Home Secretary that the applicant may have an alternative remedy of a statutory appeal. The judicial review was dismissed on 19 December 2019.

The applicant then tried to bring appeal against the decision of 22 June 2018 but the First-tier Tribunal rejected this on the grounds that it was not an appealable decision. The applicant then sought judicial review of the First-tier Tribunal’s decision and this was also refused by the Upper Tribunal.

Application to the Court of Appeal

On 5 August 2020 an appellant’s notice was filed in the Court of Appeal, without the sealed order and skeleton argument as required by practice direction 52C paragraph 3(4). Due to Covid-related delays, the appellant’s notice was not formally issued by the Court of Appeal before an application for an extension of time to file a skeleton argument was made on 14 October 2020.

On 29 October 2020 court lawyers noted that this raised a point about what to do where an extension of time application was made before an application had been issued. The skeleton argument was filed the same day. On 30 October 2020 the Court of Appeal office advised the applicant’s solicitors that they had 14 days to file the appellant’s bundle following receipt of the sealed appellant’s notice, which had still not been done at this point. The appellant’s bundle was lodged on 18 November 2020.

Counsel for the applicant emailed the Court of Appeal office on 8 March 2022 to find out what was happening with the case and the office were unable to find any record of the application being sealed. They asked the applicant to file a new appellant’s notice, with the required documents and to ask for an extension of time. The applicant’s solicitors responded with evidence showing that the notice had been lodged in time.

The court office then replied saying that the original appellant’s notice had been filed without the sealed order and so the minimum requirements had not been met. They also said that the order, skeleton argument and bundle had been filed three months later than as provided under the Civil Procedure Rules, and insisted that the appellant’s notice be filed again.

A new appellant’s notice was filed on 20 April 2022 and unbelievably, was again overlooked. It was issued and sealed on 15 May 2024, over two years later. Because of all the delays, an oral hearing was ordered.

Extension of time granted

The court said that

10. There was a serious failure on the part of the applicant’s legal representatives to comply with the rules relating to the filing of documents for the appeal. It is never enough simply to send in an appellant’s notice and leave the office to chase for missing documents. Such an approach creates extra work for the office, and leads to delays in dealing with other appeals. Further, there was no good reason for the failure to file the documents.

11. However, when considering all of the circumstances of the case, it is necessary both to acknowledge, and to apologise on behalf of the Court of Appeal for, the failures to seal the appellant’s notice in or around November 2020, and for the failures to seal the refiled appellant’s notice from April 2022 to May 2024.

12. These failures to seal the appellant’s notice either in November 2020 or in April 2022 mean that the serious failings on the part of the applicant’s legal representatives would not have made any material difference to the progress of the application. In these very particular circumstances, in my judgment it would be fair and just, and in accordance with the overriding objective, to grant the applicant an extension of time for filing the appellant’s notice and bundle.

Permission to appeal refused

The applicant sought to rely on the case of Sheidu v Secretary of State for the Home Department (Further submissions; appealable decision) [2016] UKUT 412 (IAC) (our write up is here) and argued that the Home Secretary had refused a human rights claim, as in Sheidu. It was argued on behalf of the Home Secretary that Sheidu was inconsistent with R (Robinson) v Secretary of State for the Home Department [2019] UKSC 11 (our write up is here) and had been confined to its facts in the later decision of R (Akber) v Secretary of State for the Home Department [2021] UKUT 260 (our write up is here).

The Court of Appeal refused permission to appeal, saying that the applicant had “no prospect” of succeeding in arguing that the 22 June 2018 decision amounted to refusal of a human rights claim and the decision had been taken in line with paragraph 353 of the immigration rules. The court said “It is sufficient for the purposes of this application to say that the effect of Robinson and Akber is that decisions by the interested party giving rise to an appeal where the interested party has not expressly accepted the further submissions as amounting to a fresh claim, are likely to be very rare indeed.”

Conclusion

The applicant presumably incurred potentially considerable legal costs due to these delays. Where lawyers make mistakes a far more detailed explanation is often required. I think it would have been useful to for the court to have explained what on earth happened, why did it happen twice, have other cases been affected and what has been done to prevent it from happening again?