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Extending time limits for late appeals


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The Upper Tribunal returns to the issue of extending time for late appeals in the case of RK (Allowed appeals – service on respondent) Albania [2015] UKUT 331 (IAC). The special pleading by the Home Office on this occasion is around the “agreement” between the entirely independent tribunal and a party to appeals to serve determinations on different places depending on the outcome of the determination. The agreement is to send to one team in the Home Office if appeals are allowed and if dismissed to be sent to another.

As the Home Office freely admit, this saves the Home Office the time and expense of having to sort the determinations for themselves, instead imposing the admittedly small administrative burden on the tribunal service.

Can we look forward to the tribunal making arrangements for legal aid cases to be heard first in lists? Or allowing cases in which the same firm acts to be heard together? Or providing “not before” listing times to Appellant’s and their representatives? Or listing out of country cases with more priority than in country cases? Or making sure judges start the day’s list at 10am promptly (almost unheard of in my experience)? Or ceasing the adjournment of listed cases just before the hearing takes place thus leaving gap-toothed barrister diaries? Or dragging the tribunal into at least the twentieth century and enabling service of documents by email? Or providing the possibility of video link evidence that helps appellants (in increasingly common overseas appeals) rather than just which prejudices them at the instigation of the Home Office (in bail applications)? Or maybe even giving over one of the two rooms at Taylor House for use by Home Office Presenting Officers so that claimant representatives might have one room between us and restoring a claimant representatives room at Hatton Cross? Or even, heavens forfend, allow claimant lawyers as well as Home Office ones to access to plug sockets in tribunal buildings?

Anyway, something went wrong in RK and the tribunal sent an allowed appeal determination to the “incorrect” address, in this case the Presenting Officer team in Cardiff rather than the Specialist Appeal Team in London. The Cardiff team forwarded the decision to London but by the time it arrived and was dealt with the time limit had expired. I should add that the time limit was then a ridiculously short five days, a period imposed by the Home Office when the Home Office used to write the rules directly rather than indirectly.

The tribunal dealt with this issue previously in Boktor and Wanis (late application for permission) Egypt [2011] UKUT 00442 (IAC)Samir (FTT Permission to appeal: time) Afghanistan [2013] UKUT 3 (IAC) and Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 60 (IAC) (see paragraphs 20-21). In Samir and in this new case of RK the Upper Tribunal changed hats and reconstituted itself as the First-tier and refused to extend time.

Undaunted, in RK the Home Office promptly missed the deadline for an appeal to the Upper Tribunal but nevertheless made a further out of time application.

You can’t fault the Home Office for chuzpah, at least. But we do not see so much as a raised eyebrow from the tribunal here, in contrast to the dire warnings of wasted costs, regulators, the rack, suggestions of false date stamps and so forth, as we do in cases old and new such as FS (Service of determination) Eritrea [2007] UKAIT 00084 and R (on the application of SN) v Secretary of State for the Home Department (striking out – principles) IJR [2015] UKUT 227(IAC). Some judges in the immigration tribunal have the utmost sympathy for the difficulties faced by under resourced and hard working civil servants but take relish in admonishing private solicitors doing their best against all the odds on a shoe string.

Anyway, the official headnote:

1. Service by the First-tier Tribunal of a determination allowing the appeal on the Presenting Officers’ Unit in Cardiff rather than on the Specialist Appeals Team in Angel Square was good service despite what was said to be an agreement to serve all allowed appeals on the Angel Square team.

2. Accordingly on the evidence before it, the Upper Tribunal upheld the decision of the First-tier Tribunal to refuse to admit the Secretary of State’s appeal from the decision of the First-tier Tribunal as the appeal was out of time and it was not in the interests of justice to extend time.

I dealt with an almost identical case a few months ago. The Home Office tried to appeal an allowed decision out of time. The First-tier judge refused permission. In contrast to RK, the experienced Upper Tribunal judge before whom it then came blithely granted permission, accepting without query or reason the Home Office explanation for being out of time. Hopefully this new decision will put an end to that practice but it remains the case that, according to the determination in Ogundimu (paragraph 11), where time is extended, for whatever reason or indeed without reason, there is no possibility of re-opening the issue after the event.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.