Don’t let this one slip by unnoticed: Wang & Chin (Extension of time for appealing) [2013] UKUT 00343 (IAC)

Colin recently alerted readers by way of a short post to the recently promulgated determination in Wang & Chin. If you have not done so already, I strongly recommend you read this determination as it concerns the Secretary of State very nearly getting away with an untruthful application for an extension of time to appeal a determination of the First-tier Tribunal, the obligations upon the Judges who decide such applications to require more than unsubstantiated assertions for the reasons for lateness and whether the Upper Tribunal has jurisdiction to determine on appeal issues arising out of decisions to grant extensions of time.

Briefly, the appellants are wife and husband. Mrs Wang had applied for an extension to her leave her remain (the particulars being unimportant for the purposes of this piece) and Mr Chin as her dependant. The Secretary of State’s refusal led to their appeal before the Immigration Judge Jones who dismissed the appeal under the immigration rules but allowed it under Article 8 ECHR.

The Secretary of State appealed against the Judge’s conclusions on Article 8 and permission was granted to the Upper Tribunal. On appeal to the Upper Tribunal a panel including Vice-President Ockelton dismissed the Secretary of State’s appeal, finding that Judge Jones’s conclusion on the question of the appellants’ Article 8 rights was neither irrational nor in any other defective in public law terms. (As an aside, note that in the determination Mr Ockelton reminds us that ‘..the fact that individuals could return to their own country and live there does of itself mean that it would be proportionate to require them to do so.’ It is comforting to hear a restatement of the principle that insurmountable obstacles does not actually mean impossibility of return from such a source as Mr Ockleton, especially after the frankly puzzling manner in which it was twisted in Nagre).

Immediately after giving reasons for dismissing the Secretary of State’s appeal Mr Ockelton looked to the ‘..procedural difficulties’ with the Secretary of State’s application for permission to appeal. This is what had happened. The determination was dated 20 February 2012 and had been sent out on 21 February 2012. The Secretary of State’s application for permission to appeal was made on 18 October 2012. The explanation for the lateness for lodging the application was this pathetically brief and contained no supporting evidence yet the Judge still extended time.

Of the Secretary of State’s application Mr Ockelton states that ‘Both the application and the manner of dealing with it raise considerable concerns’, the truthfulness of the explanation provided by the Secretary of State was in ‘considerable doubt’ and there was no good reason for the Secretary of State to assert the facts that were asserted in the explanation for the lateness. The Judge’s decision granting permission was ‘simply not adequate’ and her decision gave ‘..no hint of her having appreciated the difficulties we have mentioned.’

Interestingly, we see from the determination that counsel for the appellants properly sought to have the Upper Tribunal itself set aside the Judge’s decision on the extension of time. Of this Mr Ockelton states ‘..because of our view as to the merits of the Secretary of State’s appeal, we think it is unnecessary to determine that issue of jurisdiction in these proceedings. Clearly it has some general relevance in the interpretation of the Upper Tribunal’s jurisdiction across all chambers, and it would perhaps not be right to express a concluded view from this chamber alone’.

This is why I think Wang & Chin is alarming/ important in equal measure:

It’s alarming because, as I myself have seen before, the Secretary of State’s application for an extension of time was accepted without question. Can anybody reading this begin to imagine what representatives of asylum/immigration claimants would have been required to do to explain a delay of nearly 8 months? Explaining a delay of a few days is difficult enough. In a recent case of mine there was a similar delay and, again, the Secretary of State’s explanation was essentially ‘We never received it, honest we didn’t’ and permission was granted nonetheless. No documentary proof, no proper explanation, no witness statements yet they were given the opportunity to have a properly reasoned and lawful determination torn apart by the Upper Tribunal simply because whoever heard it may have had a different view on public interest on Article 8. In my case, it took a lengthy and costly judicial review of the decision in order to get to the truth of the matter and to have it set aside. Thankfully the Secretary of State’s appeal Wang & Chin came before this particular panel of the Upper Tribunal. It may well have not.

The case is an important one in terms of practice and procedure.

As I have stated above, being faced with a submission by the appellants’ counsel that the Upper Tribunal should itself be able to rule on the legitimacy of the application for an extension of time Mr Ockelton states that it is ‘..unnecessary to determine the issue of jurisdiction’. With respect to the V-P, in NA (Excluded decision; identifying judge) Afghanistan [2010] UKUT 444 (IAC) the Upper Tribunal ruled that it did not have jurisdiction so I am puzzled why its view has suddenly changed. In fact, as I will now try to explain, it seems to me that the whole business of applications to the Upper Tribunal for extension of time is in a bit of a mess to say the least.

Section 11 of the Tribunals, Courts and Enforcement Act 2007 states (my emphasis):

(1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision.

(2) Any party to a case has a right of appeal…
Article 3(m) of the Appeals (Excluded Decision) Order 2009 (SI 2009/275) (as amended) defines an ‘excluded decision’ as

...any procedural, ancillary or preliminary decision made in relation to an appeal against a decision under…section 82, 83 or 83A of the Nationality, Immigration and Asylum Act 2002.

In NA, a case in which although time there had been a decision not to extend time yet it had found its way to the Upper Tribunal by administrative error, the appellants sought to argue that the Upper Tribunal could itself rule on the matter. The Upper Tribunal ruled that that a decision to extend time is an ‘excluded decision’ and therefore the appellants could not on appeal argue the merits. This appears undoubtedly correct, the decision to extend time or to not extend time is a ‘preliminary decision’ and thus an excluded one, no right of appeal lies against it and your only option is to apply for permission to apply for judicial review. However, despite its own ruling the Upper Tribunal found that the fact that the Judge refusing permission had not identified him/ herself rendered the decision ‘..a fundamental breach of justice’ and the decision was vitiated.

Then there is the decision in Boktor and Wanis (late application for permission) Egypt [2011] UKUT 00442 (IAC), an appeal by the Secretary of State to the Upper Tribunal where despite the Secretary of State making an application to extend time to appeal it had not been considered at all by the Judge granting them permission to appeal. There was no reference to the determination of NA on the jurisdiction issue and the Upper Tribunal looked at the merits of the Secretary of State’s application to extend time, citing the starred decision AK (Tribunal appeal – out of time) Bulgaria [2004] UKIAT 00201 (starred) (a grant of permission to appeal is conditional on the application to extend time being granted). The Upper Tribunal found there the Secretary of State’s application to extend time had no merit and that therefore there was no appeal before it. The determination allowing the appellants’ appeal therefore stood.

The position on the Upper Tribunal’s jurisdiction is therefore as follows:

1. It is unclear whether the Upper Tribunal has jurisdiction to decide the merits of an application to extend time (Wang and Chin); but
2. under the legislation an application for an extension of time to appeal is an excluded decision and therefore it cannot appealed to the Upper Tribunal (NA); and
3. although the Upper Tribunal has no jurisdiction to hear appeals on excluded decisions if the Judge deciding the application to extend time has not identified him or herself this amounts to ‘a fundamental breach of justice’ and the decision can be vitiated on appeal to the Upper Tribunal (again, NA); and
4. if the deciding Judge has not decided the application to extend time at all and permission to appeal has been granted then the Upper Tribunal can decide on the merits of the application to extend time on appeal (Boktor & Wanis) because the grant of leave is conditional on the grant of the application to extend time (AK).

Whether or not these positions can be rationally reconciled and whether or not it is the job of the Upper Tribunal or the Administrative Court to determine the lawfulness of the Secretary of State’s applications to extend time is perhaps beside the point. Our clients’ victories in the First-tier Tribunals are hard won and above all they only want certainty that the Secretary of State will not be allowed to get away with suspiciously vague applications and that she will made to meet the same rigorous conditions as faced by our losing clients.