Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005389

First-tier Tribunal No: PA/59088/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 4th of February 2025

Before

UPPER TRIBUNAL JUDGE PINDER
DEPUTY UPPER TRIBUNAL JUDGE SMEATON

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

WMP
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms Nnamani, counsel (instructed by Marvel Oaks solicitors)
For the Respondent: Mr Wain, Senior Home Office Presenting Officer

Heard at Field House on 28 January 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the Appellant, likely to lead members of the public to identify the Appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. Although the Secretary of State for the Home Department is the appellant in this appeal, for ease of reference, the parties are referred to in this decision as they appeared below.

2. The Respondent appeals with the permission of First-tier Tribunal (‘FtT’) Judge Mills against the decision of FtT Judge Morgan. By his decision promulgated on 23 September 2024 (‘the Decision’), Judge Morgan allowed the Appellant’s appeal against the Respondent’s refusal of his protection claim.

Background

3. The Appellant is a national of Bolivia. He entered the UK in September 2018 on a valid visitor’s visa and subsequently overstayed. He claimed asylum in February 2021. He claimed to be at risk from a criminal gang to whom he owes money.

4. The claim was refused by the Respondent on 9 October 2023. The Respondent concluded that the reasons given by the Appellant for claiming a well-founded fear of persecution did not fall with the 1951 UN Convention relating to the Status of Refugees (‘the Refugee Convention’). The Respondent accepted that the Appellant had borrowed money from a drug gang and had not paid it back, but maintained that there was no evidence that he would still be at risk on return given that he had faced no issues after he relocated internally, and further that there would be sufficiency of protection from the Bolivian police force and judiciary.

The appeal to the FtT

5. The Appellant appealed against the Refusal Decision to the FtT. His appeal was heard by Judge Morgan, sitting at Taylor House IAC, on 18 September 2024. The Appellant was represented by Ms Nnamani, who also appeared before this Tribunal. The Respondent was represented by a Home Office Presenting Officer.

6. In the Decision allowing the appeal, Judge Morgan:

6.1. accepted the evidence given by the Appellant and his wife in its entirety;
6.2. accepted that the Appellant had unsuccessfully sought the assistance of the police in Bolivia and that there was no sufficiency of protection or internal relocation in the alternative;
6.3. concluded that there was a real risk that the Appellant would be subjected to article 3 ill treatment if returned to Bolivia;
6.4. did not accept that the claim engaged the Refugee Convention on the basis that the Appellant was a member of a Particular Social Group (‘PSG’) (namely a person who owes a debt to a criminal gang); and
6.5. allowed the appeal under article 8 ECHR and on asylum grounds.

The appeal to this Tribunal

7. The Respondent appealed to this Tribunal on two grounds:

(1) Judge Morgan allowed the appeal on asylum grounds but failed to identify the Convention reason said to be engaged or to give reasons why the Refugee Convention was engaged, noting that he had expressly rejected the Appellant’s claim to be a member of a PSG; and
(2) Judge Morgan failed to provide reasons or adequate reasons for his finding that the Appellant could not relocate internally and/or that there was no sufficiency of protection.

8. Permission to appeal was granted on ground one only by FtT Judge Mills on 22 November 2024. He considered that had this been the only ground before him, the error argued under this ground could have been corrected under Rule 31 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (‘the slip rule’).

9. Judge Mills refused permission in respect of ground two. He acknowledged that Judge Morgan’s reasons were brief, but considered them to be adequate. He noted that Judge Morgan had referred to the background evidence and concluded that, in light of his positive findings on the Appellant’s credibility, it was open to Judge Morgan to accept that the Appellant had sought state protection and been declined assistance, and that the gang would likely seek the Appellant throughout Bolivia, rendering any suggestion of an internal relocation option unviable.

10. The application for permission to appeal was not renewed in-time before this Tribunal in respect of ground two.

11. The matter was listed for hearing before this Tribunal (Upper Tribunal Judge Pinder and Deputy Upper Tribunal Judge Smeaton) on 28 January 2025.

12. We heard submissions from both representatives. We do not propose to rehearse the submissions made here, but will consider what was said during our analysis of the grounds of appeal.

The respondent’s application to renew ground two out of time

13. On 27 January 2025, at approximately 5pm, the Respondent submitted an application to amend its grounds. The timing of the application meant that we did not see it until the hearing had commenced, although it had been served on the Appellant.

14. Mr Wain made oral submissions on the application. He clarified that he was not applying to amend the grounds but seeking to renew the application for permission in respect of ground two out of time. He explained that the delay in making the application was due to the delay in allocating the matter for a review. He said that this was due to ‘resourcing issues’ in early December 2024.

15. Ms Nnamani objected to the application. She maintained that no good reasons had been given for the delay and that, in any event, the second ground of appeal was not meritorious.

16. Having heard submissions from both representatives, we refused to admit the Respondent’s application out of time. Brief reasons for that refusal were given at the hearing and are as follows:

17. An application to this Tribunal for permission to appeal must be received by the Tribunal no later than 14 days after the FtT’s decision refusing permission (on some or all of the grounds)) was sent to the appellant, where he or she is in the UK (rule 21(3)(aa) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (‘the Upper Tribunal Procedure Rules).

18. This is a strict procedural requirement (see R (Talpada) v SSHD [2018] EWCA Civ 841).

19. If an appellant makes an application for permission to appeal outside of the time limit specified by the Upper Tribunal Procedure Rules, as here, the application must include a request to extend time and the reason for not having made the application in time (rule 21(6)).

20. We note that no such reasons for the application having been made out of time were given by the Respondent in the written application.

21. This Tribunal may, in the exercise of its general case management powers, extend the time for applying for permission to appeal (rule 5(3)(a)). If it decides not to extend time, it must not admit the application for permission to appeal (rule 21(6)(b)).

22. There are no specific provisions as to the criteria to be applied in deciding whether to extend time but this Tribunal is required to give effect to the overriding objective of 'dealing with a case fairly and justly' when it exercises any power under the Upper Tribunal Procedure Rules (rules 2(1), 2(2) and 2(3)(a)). This Tribunal should apply the principles and the three-stage test set out in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, Denton v White [2014] EWCA Civ 906 and R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633 (as summarised in R (on the application of Onowu) v First-tier Tribunal (Immigration and Asylum Chamber) (extension of time for appealing: principles) IJR [2016] UKUT 185 (IAC)).

23. As to the first element of the test, the failure to comply with the rules is significant. Judge Mills refused permission to appeal in respect of ground two on 22 November 2024. The application to renew was not made until 5pm on 27 January 2025, the evening before the hearing.

24. As to the second element of the test, the application was made significantly more than 28 days out of time. This is a significant delay (see Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 60 (IAC) at paragraph 20). No good reason has been provided for that delay. The alleged ‘resourcing issue’ was not adequately explained or evidenced by the Respondent. We remind ourselves that there is no merit in constructing a special rule for public authorities; they have a responsibility to adhere to the court's rules even if their resources are 'stretched to breaking point'. A solicitor or public body having too much work will rarely be a good reason for failing to comply with the rules (see R (on the application of Onowu) at paragraph 14). There was no evidence before us to suggest that there was a significant resourcing issue, beyond the control of the Respondent, which existed throughout the period November 2024-January 2025. No criticism is made here of Mr Wain, who was allocated the case late in the day.

25. As to the third element of the test, we have regard to the need for litigation to be conducted efficiently and at proportionate cost and the need to enforce compliance with rules, practice directions and court orders. The Respondent has been represented throughout the proceedings. Judge Mills’ grant of permission was clear in its limitation and expressly stated that, if the Respondent wished to argue the second ground before the Upper Tribunal, she would need to renew her application on that basis. As to the merits of that second ground, it is not possible for us to say, without much investigation, that the grounds are very strong. To the contrary, there is no obvious error in Judge Morgan’s decision. We remind ourselves that when this Tribunal considers a challenge to the FtT's reasoning, it is important that judicial restraint be exercised and that this Tribunal should not too readily assume that the FtT misdirected itself just because not every step in its reasoning is fully set out. Paragraph 20 of Judge Morgan’s determination is brief but refers to the evidence which was before him, both subjective and background. We agree with the reasons given by Judge Mills for refusing permission on this ground.

26. Taking all those factors in the round, we do not extend time and the Respondent’s application to renew her application permission to appeal in respect of ground 2 is not admitted.

Ground one

27. As set out above, the Respondent does not have permission to challenge the finding that the Appellant would be at risk on return at the hands of a criminal gang and that there is no internal relocation alternative or sufficiency of protection available. The same applies to the Judge’s findings as to the Appellant’s claim under Article 8 ECHR.

28. As the parties agreed before us, the sole issue in this appeal is therefore whether Judge Morgan materially erred in allowing the matter on asylum grounds, having determined that the claim did not engage the Refugee Convention.

29. It was not in dispute between the parties that he did so err and that that error was material. We agree.

30. The parties also agreed that, if we were to accept that there was a material error of law, we should proceed to re-make the decision, allowing the Appellant’s appeal under articles 2 and 3 ECHR given that the findings of the FtT on risk at paragraphs 18-20 remain undisturbed.

Conclusion

31. For all those reasons, we are satisfied that the Decision contained a material error of law and must be set aside. The findings and decision in respect of article 8 ECHR remain undisturbed, as briefly referred to above.

Notice of Decision

32. The Decision of FtT Judge Nixon dated 4 October 2024 involves the making of an error of law. The Decision is set aside.

33. We re-make the decision by allowing the appeal under articles 2, 3 and 8 ECHR.

J. SMEATON

Judge of the Upper Tribunal
Immigration and Asylum Chamber

28 January 2025