Modhavadiya, R (on the application of) v Secretary of State for the Home Department

An application to extend time for appealing an immigration decision must be supported by a proper explanation and appropriate evidence. A tribunal is entitled to assess the explanation actually placed before it. Judicial review will not succeed merely because a more detailed explanation is advanced later, or because the applicant may lose the opportunity to give oral evidence. Where the tribunal directed itself by reference to the applicable principles and reached a conclusion open on the material before it, the decision is not unlawful.

The claimant sought permission to apply for judicial review of an immigration judge’s refusal to extend time for appealing the refusal of her application for indefinite leave to remain as a spouse. She had made further representations to the Secretary of State before lodging her notice of appeal. The immigration judge treated the appeal as out of time and found that the explanation provided in the appeal form was inadequate. The renewed application challenged that decision on grounds including misunderstanding of the appeal notice, failure to consider the consequences of refusal, and failure to consider the merits.

1. The renewed application for permission to apply for judicial review was refused.

2. The immigration judge was entitled to conclude that the appeal was out of time. The claimant’s notice of appeal identified the original decision as the decision under challenge, and the relevant deadline ran from service of that decision.

3. Any application for an extension of time required a properly supported explanation. Applying the approach in BO and Others (Extension of time for appealing) Nigeria [2006] 00035, the immigration judge was entitled to find that the three short paragraphs in the form did not explain the delay. They did not state that the claimant had been misled by the wording of the notice, and no supporting evidence was provided.

4. The later attempt to rely on an alleged misunderstanding could not establish an error of law in the immigration judge’s decision, because that material had not been put before the judge. The judge was entitled to decide the application on the evidence submitted.

5. The loss of an opportunity to give oral evidence was an ordinary consequence of refusing an extension of time and did not require separate elaboration. The judge’s reference to reapplying for entry clearance did not show that he misunderstood the claimant’s position.

6. The judge could not be criticised for failing to assess the merits in detail. The application contained no effective explanation for the delay, and the material supplied did not disclose grounds so cogent that a different conclusion was required.

7. The court endorsed the observations of Elias J, who had refused the application on paper. Expedition of the transcript was also refused.

• High Court (Administrative Court): Elias J refused the application on paper.
• High Court (Administrative Court): Sullivan J refused the renewed application for permission to apply for judicial review.