In immigration law, deadlines are important. They also frequently cause confusion.

Sound familiar? That may be because this is how I began a post last month following the Upper Tribunal case of Bhavsar. The Upper Tribunal has now published another case demonstrating the importance of, and confusion caused by, deadlines in immigration cases.

The case is Sutharsan (UT rule 29(1): time limit) [2019] UKUT 217 (IAC). This time the tribunal was concerned with the deadline for filing an acknowledgement of service in immigration judicial review proceedings. The relevant rule requires the Home Office to lodge an acknowledgement of service “no later than 21 days after the date on which… the applicant provided a copy of the application”.

The case centred on what the word “provided” means. Does it mean the date the application is sent, or the date that it is received?

The tribunal held that it means the date the application is received, relying on the Civil Procedure Rules that governed immigration judicial reviews when they were dealt with in the High Court; a consultation paper published by the Tribunal Procedure Committee at the time the rule was drafted; and the comments made in Bhavsar about the meaning of the word “provided”.

This ambiguity has never caused an issue in Scotland, where immigration judicial reviews continue to be dealt with by the Outer House of the Court of Session (broadly equivalent to the High Court in England and Wales) rather than the Upper Tribunal. Under Court of Session rules, the Home Office must also respond to an immigration judicial review within 21 days. The 21 days begins following “service”. There is a separate chapter of the rules addressing the methods of service and, significantly, when a document is deemed to have been served, making it clear when the 21-day clock starts ticking.

Such provisions are commonly found in court rules throughout the UK. I don’t know why the Tribunal Procedure Committee decided to deviate from this model when drafting the Upper Tribunal rules (if anyone knows, I’d be interested in hearing the reason). Perhaps using the word “provided” was seen as simpler and easier to understand for those who are not lawyers. The concept of “service” is familiar to lawyers but may not mean much to everyone else.

Unfortunately use of the word “provided” seems to have just caused more confusion. The tribunal acknowledged that use of the word is:

…not free from difficulty, in that the 2008 Rules contain no express provision like CPR 6.14, making it clear that a document sent by post by one party to someone other than the Tribunal is deemed to be served/received on the second business day after posting… It is plainly in the interests of the overriding objective in rule 2 to interpret the references to providing in rule 29(1) as including the position that a copy application which is sent by post is deemed to have been provided on the second business day after it was posted, unless the contrary is proved. Pursuant to rule 2(3)(b), that is how the references will be interpreted by the Tribunal.

So following Sutharsan it is now clear that the 21-day time limit begins to run on the day after the date the Home Office receives the application for judicial review, which if sent by post will usually be deemed to be two working days after the date of postage.

So let’s say the application is posted on Monday 22 July 2019. It is deemed to have been received, and thus provided to the Home Office, on Wednesday 24 July 2019. The 21 days begins to run the day after, on Thursday 25 July 2019 (meaning this is day 1 of 21). The deadline for lodging the acknowledgement of service is 14 August 2019 (i.e. 21 days after 24 July 2019). 

The terminology used by the tribunal is slightly confusing. I would describe the 21-day time limit as beginning to run on 24 July 2019 in the example above as counting forward 21 days from this date will provide the deadline. However this is technically day 0. The counting of days begins on 25 July 2019, which is day 1, hence the phrase “begins to run on the day after” the date the application form is received.