Harris, R (on the application of) v Secretary of State For the Home Department

Applications for permission to appeal and an extension of time must be made promptly and within the framework established by the Civil Procedure Rules. Where an appellant anticipates that an internal or ministerial decision may not be made before expiry of the appeal period, the proper course is to apply prospectively for permission and a realistic extension. A party cannot allow the time limit to expire, take the appeal decision later, and expect the court to regularise the delay without good reason. The court must give effect to the policy of finality and expedition embodied in the appellate time limits.

The claimant, a long-term Jamaican resident, succeeded before Collins J in challenging the refusal of leave to enter after a short visit abroad. The Secretary of State sought permission to appeal, but Collins J refused permission on 13 March 2001. No prospective application was made to the Court of Appeal for an extension of time. The Appellant’s Notice was filed approximately 77 days late, after the Secretary of State’s decision to appeal had been taken.

The central issue was whether the court should extend time and grant permission to appeal despite the delay. The substantive immigration and human-rights issues were argued, but arose only if the procedural applications succeeded.

1. Extension of time and permission refused. The Court of Appeal unanimously refused both applications. The Secretary of State had failed to show good reason for not applying prospectively for an extension before the 14-day period expired.
2. Rule 52.4 imposed a 14-day period for filing an Appellant’s Notice where the lower court had not directed otherwise. Rule 52.6 required an application to vary the time limit to be made to the appeal court. The rules reflected a clear policy favouring finality and expedition.
3. The fact that the decision whether to appeal required ministerial consideration did not justify inaction. The Secretary of State should have applied promptly for permission and a realistic extension, enabling the court to determine an appropriate timetable. The later an application was made, the weaker the justification for extending time.
4. The Department’s initial conduct was reasonable because advice on the merits was obtained promptly and the possible effect of ministerial consideration was recognised. Thereafter, however, it acted as though the new appellate regime did not apply. There was no good reason for failing to apply before expiry, and no basis for granting a retrospective extension after the notice had been filed substantially out of time.
5. The substantive issue therefore did not arise. Nevertheless, having heard the submissions, the court remained of the view that Collins J had reached the correct conclusion for the reasons given by him, including his treatment of Immigration Act 1971 section 7 and the Article 8 proportionality issue.

• Court of Appeal (Civil Division): refused the Secretary of State’s applications for an extension of time and permission to appeal.
• High Court of Justice, Queen’s Bench Division (Administrative Court): Collins J allowed the claimant’s judicial review claim and quashed the refusal of leave to enter.