If your asylum or immigration application is refused by the Home Office, and you have a right of appeal, your appeal will be heard in the First-tier Tribunal (FTT). If you lose your appeal at the FTT, you may be able to appeal to the Upper Tribunal. But you have to get permission to appeal.

The first step is to apply to the FTT to grant this permission. If the FTT refuses to grant permission, then there is a short space of time – 14 days – for you to renew your application for permission to appeal directly to the Upper Tribunal. Meeting this time limit can be a real challenge: it involves reassessing, and often redrafting, the grounds of appeal in order to persuade an Upper Tribunal judge that you have identified an error of law by the FTT that is arguable and capable of making a material difference to the outcome of the case.

The Upper Tribunal procedure rules set out what must be included in an application for permission to appeal. Rule 21(4)(e) stipulates that the “application must state… the grounds on which the appellant relies”.

In practice, it is often counsel’s job to draft these grounds of appeal, which will be attached to the application form filled out by the appellant or their solicitor. But for a range of reasons – both intellectual and administrative – the grounds of appeal may have not been finalised before the 14-day deadline. Sometimes an appellant or their adviser may opt to lodge the application without the grounds in order to meet the time limit.

Is an appeal application lodged without grounds invalid because it falls foul of Rule 21(4)(e)? If not, what steps should the Upper Tribunal take to ensure compliance with the procedure rules?

In the recent case of SA (Non-compliance with rule 21(4)) [2022] UKUT 132 (IAC), the tribunal sought to answer these questions.

In this case, SA’s application for permission to appeal has been received by the Upper Tribunal one day out of time, but without any grounds attached. No grounds were in fact submitted for another 209 days, in spite of the Upper Tribunal’s efforts to obtain them.

Counsel for SA, my colleague Rudolph Spurling – who had not drafted the application or the grounds – asked the tribunal to take a generous approach. He argued that the right to make an appeal application was a freestanding right that did not depend upon whether grounds were attached, which was a separate obligation. A failure to attach the grounds of appeal was simply a procedural defect which should not invalidate the entire application.

The appellant acknowledged that the procedure rules required the grounds to be included with the application, so they were caught by the same 14-day deadline. He therefore proposed that the Upper Tribunal should adopt a similar process in cases where the grounds are late to the process for deciding whether to allow an out-of-time application, contained in paragraph 14 of the Joint Presidential Guidance on permission to appeal to the Upper Tribunal. This would involve assessing: (1) the seriousness of the breach; (2) the reason(s) for the breach; and (3) all the circumstances of the case (as per the Mitchell and Denton criteria). 

The Upper Tribunal agreed that a failure to comply with Rule 21(4)(e) does not automatically invalidate a permission application. It also held that, in the absence of any accompanying written grounds, the judge deciding the application must still consider whether there are any grounds for granting permission.

But the panel said that deliberately submitting an application without grounds to make the 14-day deadline was “an abuse of process or akin to an abuse of process (whether or not it was intended as such)”. It would “amount to an attempt to circumvent the clear intention behind rule 21(3) and 21(4)(e) taken together… to circumvent the rule 21(3) deadline”. The “correct and proper approach in such cases is to make the application when it can be submitted with the grounds and, if necessary, request an extension of time”. The request for a deadline extension would then be assessed using the three-stage approach set out in the Joint Presidential Guidance.

In cases where grounds are missing, the panel disagreed with the suggestion that the Upper Tribunal should always consider the grounds already submitted to the FTT:

In our judgment, there can be no expectation that the judge will do so. To accede to this submission would effectively elevate a case in which no grounds were submitted to the Upper Tribunal above a case in which such grounds are submitted. In the case of the latter, grounds that are not identified in the grounds to the Upper Tribunal or are not stated in the grounds to the Upper Tribunal as being relied upon are not normally considered by the judge.

The tribunal went on to clarify the approach that will be taken in future missing grounds cases, which can be summarised as follows:

Step 1: The tribunal will write to the appellant or their lawyer pointing out the omission; giving a new deadline for grounds to be submitted; and explaining that once the deadline has expired, a judge will decide the permission to appeal application with or without the grounds.

Step 2: When deciding an application without grounds attached, the judge will consider any grounds for granting permission apparent on the material available; a ground must have a “strong prospect of success”, the normal test when considering granting permission to appeal on a ground additional to or in the place of the grounds pleaded in the application (see AZ (error of law: jurisdiction; PTA practice) Iran [2018] UKUT 245 (IAC)).

The lesson from this case is that the Upper Tribunal will take a robust but pragmatic approach to failures to submit grounds with a permission application. The panel indicated a strong intention to discourage appellants from submitting applications without grounds attached as a loophole to gain unwarranted extensions of time, but was not prepared to hold that such a defect would be fatal to the application. There should, as a result of this decision, be greater consistency of approach to non-compliance with Rule 21(4) by Upper Tribunal judges in future.