Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/27293/2015

THE IMMIGRATION ACTS

Heard at : Field House
Decision & Reasons Promulgated
On : 22 December 2016
On : 23 December 2016

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

hysni paqa
Respondent

Representation:

For the Appellant: Mr T Wilding, Senior Home Office Presenting Officer
For the Respondent: Mr B Lams, instructed by Oaks Solicitors

DECISION UNDER RULE 21(6) OF THE TRIBUNAL PROCEDURE (UPPER TRIBUNAL) RULES 2008

1. For the purposes of this decision, I shall hereinafter refer to the Secretary of State as the respondent and Mr Paqa as the appellant, reflecting their positions as they were in the appeal before the First-tier Tribunal.

2. The appellant is a citizen of Kosovo born on 26 August 1973. He originally entered the United Kingdom on 24 April 2000 and made various unsuccessful applications to remain in the UK on asylum and family life grounds. On 24 September 2014 he made an application for leave to remain on family and private life grounds, based primarily on his family life with his wife and two sons (born on 12 May 2003 and 28 November 2004). His application was refused on 16 July 2015. He appealed against that decision and his appeal was heard in the First-tier Tribunal on 17 June 2016, by which time he had a third child, a daughter born on 23 February 2014.

3. The appellant's appeal was allowed by First-tier Tribunal Judge Miles on Article 8 grounds, outside the immigration rules, on the basis of the provisions in section 117B(6) of the Nationality, Asylum and Immigration Act 2002.

4. The respondent sought permission to appeal that decision to the Upper Tribunal on 12 July 2016. The application for permission was one day out of time but time was extended by the First-tier Tribunal Judge considering the application, although permission was refused, in a decision issued and sent out by the First-tier Tribunal on 21 October 2016. The decision was sent under cover of Form IA67, advising the parties that the application for permission had been refused and referring to the information enclosed about time limits.

5. In an application dated 7 November 2016, but faxed at 18.01 and thus received and date-stamped by the Upper Tribunal on 8 November 2016, the respondent renewed the application for permission to the Upper Tribunal. At section D of the Form IAUT-1 seeking permission, headed "Reasons for any delay" the person completing the form, a Senior Presenting Office from the Specialist Appeals Team, UKVI, Home Office, indicated with an "X" that he was not seeking to make the application outside the applicable time limit. However he also completed the second section of part D, in the section intended for applying for an extension of time, stating the following:

"IA67 is dated 21/10/16, but received at Home Office on 24/10/16.

This application is being submitted on 7/11/16, the 14th day since receipt of the IA67, and therefore in-time."

6. In a decision sent out on 5 December 2016, Upper Tribunal Judge Gill granted permission to the respondent, but made no reference to any timeliness issue. Indeed it was only in Mr Lams' Rule 24 response, produced the day before the hearing, that the issue was raised.

7. At the hearing Mr Lams requested that the application not be admitted and time not be extended, further to Rule 21(6) of the Procedure Rules.

8. Mr Wilding invited me to extend time on the basis that there had been little more than a miscalculation and mistake and that, taking account of the weekend, the application was really only one day out of time. He also referred to the merits of the grounds, from which it was clear that the First-tier Tribunal had erred by making a decision that was wrong, in light of the subsequent case of MA (Pakistan) & Ors, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705.

9. In response, Mr Lams submitted that the application was four days out of time, there had been no application to extend time, and in any event there was no merit in the grounds.

10. I did not agree to time being extended. My reasons are as follows.

11. The grant of permission by Upper Tribunal Judge Gill cannot be taken to include an implied extension of time. The cases of Samir (FtT Permission to appeal: time) [2013] UKUT 00003 and Boktor and Wanis(late application for permission) Egypt [2011] UKUT 00442 make it clear that a grant of permission has to be regarded as conditional upon a decision whether time should be extended. Accordingly, unless time is extended, there is no grant of permission.

12. Rule 21(3)(aa)(i) of the Procedure Rules makes it clear that the 14 day time period for applying for permission runs from the date on which the notice of the First-tier Tribunal's refusal of permission is "sent to", not "received by", the applicant. The notice of decision refusing the respondent's application for permission in the First-tier Tribunal was sent out on 21 October 2016. The 14 day period therefore expired on 4 November 2016. The respondent's application was received by the Upper Tribunal on 8 November 2016. There is nothing in the time period stated in Rule 21 to suggest that non-working days were not to be counted. The application was therefore clearly four days out of time.

13. Although the Senior Presenting Officer completing the Form IAUT-1 made the statement at [5] above in the second part of section D, that is clearly not an application for an extension of time. There was no application for an extension of time. Rule 21(6) requires there to be an application of extension of time included with the application, and it does not seem to me that it was therefore open to Mr Wilding to make an application at this late stage. In any event, Mr Wilding was unable to give any reason for the delay in submitting the application, other than that the Presenting Officer completing the form made a mistake. However, this was not the case of a lay member of the public completing the form, but a Senior Presenting Officer from the Specialist Appeals Team of the Home Office who should be fully aware of the time limits in the Procedure Rules. There is therefore simply no excuse for the application being made out of time. Neither is it the case that the delay was minimal. It was not one day out of time, but four days, which is over a quarter of the 14 day time period. It seems to me, furthermore, that there is nothing in the grounds of such merit as to override the timeliness issue. I do not see that any substantial injustice would be suffered to the respondent or to the public by allowing Judge Miles' decision to stand.

14. Accordingly I do not extend time and I refuse to admit the Secretary of State's application for permission. There is no appeal pending before the Upper Tribunal and the decision of Judge Miles, allowing the appellant's appeal on Article 8 grounds, stands.

Signed
Upper Tribunal Judge Kebede