Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: DA/00385/2013
DA/00387/2013
DA/00388/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 11 April 2014
On 20 May 2014

Before

UPPER TRIBUNAL JUDGE KOPIECZEK

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

LS
KS
QS
Respondents

Representation:

For the Appellant: Mr C. Avery, Home Office Presenting Officer
For the Respondents: Ms M. Knorr, Counsel, instructed by Wilson Solicitors

DECISION
Introduction
1. The appellant in these proceedings is the Secretary of State. However, for convenience I refer to the parties as they were before the First-tier Tribunal.
2. Thus, the first appellant is a citizen of Jamaica, born on 15 July 1984. She is the mother of the other appellants who were born in the UK on 23 September 2004 and 19 October 2006, respectively. The first appellant came to the UK on 21 February 2000 as a visitor, arriving with her mother. The first appellant was therefore 15 years of age when she arrived. The further history can, for present purposes, be taken quite shortly.
3. On 7 January 2011 the first appellant was convicted of an offence of possession with intent to supply a Class A drug, namely 27.3 grams of cocaine. The offence was committed on 9 September 2010. On 3 February 2011 in the Crown Court at Cambridge she received a sentence of 18 months' imprisonment.
4. On 13 February 2013, a decision was made to deport the first appellant under the automatic deportation provisions of section 32(5) of the UK Borders Act 2007, with corresponding deportation decisions in respect of the minor appellants.
5. The appeals came before a Panel of the First-tier Tribunal which allowed the appeals of each appellant, the appeal of the first appellant being allowed under the Immigration Rules and that of the minor appellants under Article 8 of the ECHR. The Secretary of State applied for permission to appeal against that decision.
6. The application for permission to appeal was considered by a judge of the First-tier Tribunal whose decision stated that permission to appeal was refused. The application for permission to appeal that was made to the First-tier Tribunal was out of time and the First-tier judge dealing with the application did not consider the issue of timeliness. A renewed application for permission to appeal was made to the Upper Tribunal whereby permission was granted.
7. In a 'Rule 24' response, it is contended on behalf of the appellants, in summary, that the appropriate response to the application for permission to appeal made to the First-tier Tribunal was that the application be 'not admitted' because the Secretary of State failed to draw the attention of the First-tier Tribunal to the fact that the application was out of time, and the First-tier Tribunal did not extend time. The refusal of permission by the First-tier Tribunal was therefore conditional; the decision should have been not to admit it and in consequence, the renewed application to the Upper Tribunal should have provided an explanation for the lateness of the application to the First-tier Tribunal.
8. I heard brief submissions from the parties which I refer to, as necessary, in the course of my assessment of the issue.
My assessment
9. I start by setting out the relevant procedure rules in relation both to the First-tier Tribunal and the Upper Tribunal.
10. In relation to the First-tier Tribunal the procedure rules are the Asylum and Immigration Tribunal (Procedure) Rules 2005 ("the 2005 Rules"). In so far as relevant they provide as follows:

"Appeals to the Upper Tribunal

Application for permission to appeal to the Upper Tribunal
24.-(1) A party seeking permission to appeal to the Upper Tribunal must make a written application to the Tribunal for permission to appeal.
(2) Subject to paragraph (3), an application under paragraph (1) must be sent or delivered to the Tribunal so that it is received no later than 5 days after the date on which the party making the application is deemed to have been served with written reasons for the decision.
(3) Where an appellant is outside the UK, the time limit for that person sending or delivering an application under paragraph (1) is 28 days.
(4) If a person makes an application under paragraph (1) later than the time required by paragraph (2)-
(a) the Tribunal may extend the time for appealing if satisfied that by reason of special circumstances it would be unjust not to do so; and
(b) unless the Tribunal extends time under sub-paragraph (a), the Tribunal must not admit the application.
?

Filing and service of documents
(1) Any document which is required or permitted by these Rules or by a direction of the Tribunal to be filed with the Tribunal, or served on any person may be-
(a) delivered, or sent by post, to an address;
(b) sent via a document exchange to a document exchange number or address;
(c) sent by fax to a fax number;
(d) sent by e-mail to an e-mail address;
(e) sent or delivered by any other method;
specified for that purpose by the Tribunal or person to whom the document is directed.
(2) A document to be served on an individual may be served personally by leaving it with that individual.
(3) Where a person has notified the Tribunal that he is acting as the representative of an appellant and has given an address for service, if a document is served on the appellant, a copy must also at the same time be sent to the appellant's representative.
(4) If any document is served on a person who has notified the Tribunal that he is acting as the representative of a party, it shall be deemed to have been served on that party.
(5) Subject to paragraph (6), any document that is served on a person in accordance with this rule shall, unless the contrary is proved, be deemed to be served-
(a) where the document is sent by post or document exchange from and to a place within the United Kingdom, on the second day after it was sent;
(b) where the document is sent by post or document exchange from or to a place outside the United Kingdom, on the twenty-eighth day after it was sent; and
(c) in any other case, on the day on which the document was sent or delivered to, or left with, that person.
...
Calculation of time
57.-(1) Where a period of time for doing any act is specified by these Rules or by a direction of the Tribunal, that period is to be calculated-
(a) excluding the day on which the period begins; and
(b) where the period is 10 days or less, excluding any day which is not a business day (unless the period is expressed as a period of calendar days).
(2) Where the time specified by these Rules or by a direction of the Tribunal for doing any act ends on a day which is not a business day, that act is done in time if it is done on the next business day."
11. Under Rule 2 of the 2005 Rules, a "business day" means any day other than a Saturday or Sunday, a bank holiday, 25th to 31st December or Good Friday.
12. Rule 21(6) of the Tribunal Procedure (Upper Tribunal) Rules 2008 ("the Procedure Rules") provides as follows:
"(6) If the appellant provides the application to the Upper Tribunal later than the time required by paragraph (3) or by an extension of time allowed under rule 5(3)(a) (power to extend time)--
(a) the application must include a request for an extension of time and the reason why the application was not provided in time; and
(b) unless the Upper Tribunal extends time for the application under rule 5(3)(a) (power to extend time) the Upper Tribunal must not admit the application."
Rule 2 states that:

"2.-(1) The overriding objective of these Rules is to enable the Upper Tribunal to deal with cases fairly and justly.

(2) Dealing with a case fairly and justly includes-
(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;
(b) avoiding unnecessary formality and seeking flexibility in the proceedings;
(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;
(d) using any special expertise of the Upper Tribunal effectively; and
(e) avoiding delay, so far as compatible with proper consideration of the issues.

(3) The Upper Tribunal must seek to give effect to the overriding objective when it-
(a) exercises any power under these Rules; or
(b) interprets any rule or practice direction.

(4) Parties must-
(a) help the Upper Tribunal to further the overriding objective; and
(b) co-operate with the Upper Tribunal generally."
13. The First-tier Tribunal's determination of the substantive appeal was delivered by hand to the (Home Office) Presenting Officers' Unit at Angel Square on 20 December 2013. It was sent by first class post to the appellants and their solicitors. The application for permission to appeal the decision of the First-tier Tribunal was received by the First-tier Tribunal on 9 January 2013.
14. The application to the First-tier Tribunal for permission to appeal should have been received no later than 5 days from 20 December 2013. The effect of the 2005 Rules in terms of the calculation of days and what is meant by a business day, is that the 5 day period expired on 6 January 2014. The application made to the First-tier Tribunal was not received by the First-tier Tribunal until 9 January 2014. Mr Avery accepted that chronology.
15. The application to the First-tier Tribunal was out of time. There was no indication on the application form that it was being submitted late, and in consequence there was no application for an extension of time. It is to be noted in passing that the 2005 Rules do not in fact require the party making the application to ask for an extension of time or require an explanation for its being out of time, although in the absence of an explanation it is difficult to see how in most cases a First-tier judge could find that under rule 24(4)(a) that there were special circumstances making it unjust not to extend time.
16. Although the fact that the application was out of time was indicated on the Tribunal file by means of a sticker (except that the due date was given as 7 January 2014), the First-tier judge did not deal with the issue of timeliness. Indeed, her decision stated that the Secretary of State sought permission to appeal in time, and then went on to state that the application was refused. The renewed application to the Upper Tribunal was in time.
17. In the 'rule 24' response reference is made to The Presidential Guidance Note of 2011 (amended in September 2013) which at [24] states the following:

"It can happen that an application to the FtT is made late and the question of an extension of time has not been dealt with at the time of granting permission. In these circumstances, the grant of permission to appeal is to be treated as being 'conditional' (see Boktor and Wanis (late application for permission) Egypt [2011] UKUT 00442 (IAC), as explained in Samir (FtT Permission to appeal: time) [2013] UKUT 00003 (IAC)). In considering the matter the UT Judge will be sitting as a First-tier Tribunal Judge. It is suggested that by parity of reasoning with Boktor and Wanis where an UT Judge has not dealt with the issue of lateness, the grant of permission can be considered as being conditional with the issue of an extension of time to be considered by the UT Judge seized of the appeal."
18. In Boktor and Wanis (late application for permission) Egypt [2011] UKUT 00442 (IAC) the application for permission to appeal to the First-tier Tribunal was out of time but there was an explanation which was not considered by the judge dealing with the permission application. The Tribunal concluded that the ensuing grant of permission to appeal was 'conditional', with the timeliness issue having yet to be resolved. In Samir (FtT Permission to appeal: time) [2013] UKUT 00003(IAC), again a case where the application for permission made to the First-tier Tribunal was out of time, the Upper Tribunal concluded that where an Upper Tribunal judge deals with a 'conditional' grant of permission, the Upper Tribunal Judge is in fact considering the matter as a First-tier judge. The Tribunal in that case endorsed the approach taken in Boktor and Wanis.
19. Although I was not referred to it, I have considered a further reported decision of the Upper Tribunal on this issue, Wang and Chin (extension of time for appealing) [2013] UKUT 00343 (IAC), although that decision gives wider guidance in relation to the approach to be taken when faced with an application to extend time when an application for permission to appeal is out of time. Another decision of a similar kind is Ogundimu (Article 8 - new rules) Nigeria [2013] UKUT 00060 (IAC), although it is not directly relevant to the issue before me.
20. I have also considered Mohammed (late application-First-tier Tribunal) [2013] UKUT 00467 (IAC) which again concerned an application made to the First-tier Tribunal that was out of time. In that case however, the First-tier judge recognised that the application was out of time but instead of dealing with the out of time issue the judge purported to make a 'conditional' grant of permission pending further enquiry into whether special circumstances for extending time could be established. The Upper Tribunal decided that that 'conditional' decision was defective, there being no power to make a conditional grant.
21. In that case after setting out the provisions of rule 24(4) of the 2005 Rules the Upper Tribunal said this at [6]:
"Because the two parts of rule 24(4) are conjunctive, if the First-tier Tribunal does not make a decision to extend time, then the application cannot be admitted. This means that until a decision on whether to extend time has been made by a judge of the First-tier Tribunal, the application for permission to appeal cannot proceed to the Upper Tribunal. The implication is that a judge seized of such an application is required to reach a decision on the timeliness if raised in the application or identified from the papers."
22. The appeal before me is different from those in the reported cases to which I have referred. In those cases, the issue as to timeliness related to purported grants of permission to appeal, and in all cases by the First-tier Tribunal. This appeal concerns a purported refusal of permission by the First-tier Tribunal and a subsequent decision to grant permission to appeal by the Upper Tribunal.
23. The passage which I have quoted at [21] above refers to the application being unable to proceed to the Upper Tribunal until a decision on timeliness has been made. Of course in the case of a refusal of permission by the First-tier Tribunal, there is no question of the decision proceeding to the Upper Tribunal on the basis of the First-tier Tribunal's decision.
24. It is also to be noted that what is said in the Presidential Guidance Note in relation to 'conditional' grants does only refer to grants of permission where timeliness has not been dealt with, not refusals.
25. Ms Knorr's contention is that although the First-tier judge purported to refuse the application, what she should have done was to decide the timeliness issue and decide not to admit it because it was out of time and there was no explanation for its lateness. This in turn would have required the application to the Upper Tribunal to provide an explanation as to why the application for the First-tier Tribunal was not made in time, pursuant to rule 21(7) of the 2008 Rules.
26. On one view of the 2008 Rules the appellants' argument should fail. Rule 21(7)(a) of the 2008 Rules only requires a reason for the late application to the First-tier Tribunal if the First-tier Tribunal refused to admit the application. On its face, the decision of the First-tier Tribunal in this case was plainly and unambiguously to refuse the application and thus, the permission application to the Upper Tribunal did not need to provide a reason for lateness. On that analysis the Upper Tribunal dealt with the matter appropriately.
27. Ms Knorr referred me to rule 2 of the 2008 Rules which amongst other things provides that the Upper Tribunal must seek to give effect to the overriding objective when it exercises any power under the 2008 Rules or interprets any rule or practice direction. In that context, as I understood her submission, it was that rule 21(7) of the 2008 Rules should be interpreted as meaning that where the First-tier Tribunal ought to have refused to admit an application, the ostensible grant or refusal should be interpreted as a refusal to admit the application.
28. I do not consider that there is any merit in that submission. The issue before me is not one of interpretation of a rule. The rule in question is clear. The issue is one of jurisdiction which arises independently of any issue of interpretation.
29. In Boktor and Wanis the Tribunal decided that the 'grant' was conditional. In Samir at [17] the Tribunal described the matters dealt with in Boktor and Wanis as concerning "issues as to the effectiveness of the grant of permission." At [21] it said that what had been done by the Upper Tribunal Judge in Boktor and Wanis was the completion of the task begun by the First-tier judge. In Mohamed at [6] the Tribunal concluded that until a decision on whether to extend time has been made by a judge of the First-tier Tribunal, the application cannot proceed to the Upper Tribunal. At [9] the Tribunal in Mohamed stated that the issue of timeliness remained outstanding before the First-tier Tribunal, and at [11] referred to the First-tier Tribunal as having failed to complete its task.
30. Again however, I do regard it as significant that those expressions all relate to purported grants of permission. An effective grant of permission by the First-tier Tribunal is what gives the Upper Tribunal its jurisdiction. A refusal of permission, even one that wrongly fails to consider the issue of timeliness, confers no jurisdiction on the Upper Tribunal.
31. In one sense it could be suggested that the other party to the application for permission to appeal is not disadvantaged where permission to appeal is refused in a case where there is a timeliness issue that was not dealt with by the First-tier Tribunal. Whether the application for permission is refused or not admitted has the same effect, it could be said. The effect is that the matter cannot, without further application, proceed to the Upper Tribunal. The question of disadvantage or fairness could arise, say, if consideration is given to rule 59 of the 2005 Rules. That rule is as follows:
"Errors of procedure
59.-(1) Where, before the Tribunal has determined an appeal or application, there has been an error of procedure such as a failure to comply with a rule-
(a) subject to these Rules, the error does not invalidate any step taken in the proceedings, unless the Tribunal so orders; and
(b) the Tribunal may make any order, or take any other step, that it considers appropriate to remedy the error.
(2) In particular, any determination made in an appeal or application under these Rules shall be valid notwithstanding that-
(a) a hearing did not take place; or
(b) the determination was not made or served,
within a time period specified in these Rules.
32. Plainly there is a discretionary element in rule 59 which, in conjunction with rule 4 of the 2005 Rules (the overriding objective), could arguably be invoked in a case where the timeliness issue was not dealt with by the First-tier Tribunal. It could be said for example, that the question of timeliness ought to have been raised on behalf of the respondent to the application for permission, before the matter reached the Upper Tribunal for a renewed application.
33. However, for this rule to be considered, an Upper Tribunal judge would have to sit as a judge of the First-tier Tribunal, which the Upper Tribunal judge would in any event be doing when considering timeliness under rule 24 of the 2005 Rules. In any event, as was pointed out by Ms Knorr, where an application for permission to appeal is refused by the First-tier Tribunal, the parties are not made aware of the chronology of events such as would indicate whether or not the application was submitted in time. It is only where permission is granted by the First-tier Tribunal or by the Upper Tribunal that the timeliness of the application is evident. Otherwise therefore, the respondent to the application for permission is not in a position to make any submissions as to timeliness. Those submissions have been made in this case because the grant of permission to appeal by the Upper Tribunal resulted in the application, with its grounds, being sent to the parties and from which it was evident from the chronology that the application to the First-tier Tribunal was made late.
34. However, I do not consider that this takes the appellants' arguments much further when one considers that the effect of the refusal of permission, as in a case where the application is not admitted, is that recourse to the Upper Tribunal on the strength of the First-tier Tribunal's decision is barred.
35. It is as well at this point to mention Rule 7 of the 2008 Rules, which, so far as relevant provides as follows:
"Failure to comply with rules etc.

7.-(1) An irregularity resulting from a failure to comply with any requirement in these Rules, a practice direction or a direction, does not of itself render void the proceedings or any step taken in the proceedings.

(2) If a party has failed to comply with a requirement in these Rules, a practice direction or a direction, the Upper Tribunal may take such action as it considers just, which may include-

(a) waiving the requirement;
(b) requiring the failure to be remedied;
(c) exercising its power under rule 8 (striking out a party's case); or
(d) except in [a mental health case, an asylum case or an immigration case], restricting a party's participation in the proceedings.
36. Thus, the Upper Tribunal has the power to waive an irregularity resulting from a failure to comply with any requirement in the 2008 Rules, for example rule 21(7)(a) (no explanation for lateness of application to First-tier Tribunal).
37. I also note what was said in Samir at [23], as follows:

"The application made by the Secretary of State does not, however, comply with the rules: rule 21(7)(a) requires material to be included in it, which was not included. Although in the present case, it is no doubt possible for the Upper Tribunal to discover what had been said previously, the intention of the rule is clearly that the reasons originally given should be repeated (or even amplified) so that the application before the Upper Tribunal can be dealt with properly, on the basis of all that the applicant wishes to say. We doubt (without wanting to decide the issue) whether non-compliance with rule 21(7)(a) would be sufficient to invalidate an application: nevertheless, the failure to comply with it is a matter to take into account in the circumstances of the present case." (my emphasis)
38. Drawing the threads of my assessment together, I conclude that the decision of the Upper Tribunal to grant permission to appeal is valid and confers jurisdiction on the Upper Tribunal to consider the appeal. It is not therefore necessary to consider further the question of the timeliness of the application made to the First-tier Tribunal. The refusal of permission by the First-tier Tribunal is not to be characterised as a 'conditional' refusal of permission.
39. In these circumstances, the Upper Tribunal having granted permission to appeal the decision of the First-tier Tribunal, the appeal is to proceed to a hearing to decide whether the First-tier Tribunal erred in law and if so, what is the consequence of any error of law. The existing directions sent with the Upper Tribunal's grant of permission continue to apply.

Anonymity
Given that these proceedings involve children, I make an order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008). Consequently, this decision identifies the appellants by initials only in order to preserve the anonymity of the minor appellants.

Upper Tribunal Judge Kopieczek
15/05/14