NA v Secretary of State for the Home Department

A refusal to extend time for lodging an immigration appeal is a preliminary decision made in relation to an appeal. It is therefore an excluded decision under Article 3(m) of the Appeals (Excluded Decisions) Order 2009, and no appeal lies to the Upper Tribunal under section 11 of the Tribunals, Courts and Enforcement Act 2007. Permission to appeal cannot create that absent jurisdiction.

A party is entitled to know the identity of the judge deciding its case. Where an appeal is determined without a hearing, the decision must identify its judicial author. Failure to name the judge is a fundamental breach of justice which vitiates the decision.

The Secretary of State refused NA's asylum claim and decided to remove him as an illegal entrant. NA lodged his notice of appeal to the First-tier Tribunal four working days after the deadline. A purported Duty Judge declined to extend time.

NA obtained permission to appeal to the Upper Tribunal. The respondent submitted that the extension decision correctly applied the approach in BO and Others (Extension of time for appealing) Nigeria [2006] UKAIT 00035. The Upper Tribunal considered both the merits of that decision and two issues arising independently of NA's circumstances: the unnamed and unsigned decision, and whether an appeal to the Upper Tribunal was statutorily available.

1. There was no valid appeal before the Upper Tribunal. Section 11 of the Tribunals, Courts and Enforcement Act 2007 permits an appeal only from a First-tier Tribunal decision other than an excluded decision. A ruling on whether a late notice of appeal should be accepted is expressly a preliminary decision under rule 10(6) of the First-tier Tribunal Procedure Rules.

   It is also a decision made “in relation to an appeal” for Article 3(m) of the Appeals (Excluded Decisions) Order 2009. That remains so although the decision determines whether an appeal has been instituted in time. The change from the former reconsideration wording did not alter the established position. The available challenge to such a decision is judicial review, not an appeal to the Upper Tribunal.

2. The grant of permission could not confer jurisdiction which the statute withheld. The Tribunal therefore made no merits determination of a valid Upper Tribunal appeal.

3. The Tribunal nevertheless stated its view that the purported First-tier Tribunal decision was vitiated. Applying R v Felixstowe Justices, ex parte Leigh and another [1987] 1 All ER 551, open justice requires litigants and the public to know who decided a case. An unsigned decision that did not name the Duty Judge made it impossible to know whether its author was a First-tier Tribunal judge and prevented an effective objection based on actual or apparent bias. The omission was a fundamental breach of justice. Although a slip-rule correction may sometimes be possible, the time for it had passed.

4. On the material available to the purported Duty Judge, the Tribunal considered that the approach in BO and Others (Extension of time for appealing) Nigeria had been correctly applied. The explanation and information concerning the asylum claim were limited. Those observations did not alter the jurisdictional outcome.

• Upper Tribunal (Immigration and Asylum Chamber): held that the refusal to extend time was an excluded decision and that no valid appeal lay to it: [2010] UKUT 444 (IAC).

• First-tier Tribunal (Immigration and Asylum Chamber): a purported Duty Judge decided that NA's notice of appeal was out of time and declined to extend time. The decision did not identify the judge who made it.