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

An extension of time for an immigration appeal requires the applicant to show, on the balance of probabilities, special circumstances making refusal unjust. The starting point is the explanation for the delay. A short delay does not itself satisfy the rule where the explanation is inadequate.

An alleged evidential-flexibility policy will not ordinarily support an extension or create a legitimate expectation where the evidence shows that the policy was unsettled, piecemeal or inconsistently applied.

The UK Border Agency refused an application for further leave to remain as a Tier 4 student migrant because required documents had not been provided. The applicant lodged his appeal four days late and sought an extension under rule 10(5) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

An immigration judge refused the extension. Judicial review permission was refused by David Elvin QC, and renewal was refused by Mrs Justice Davies. The applicant renewed his application for permission to appeal, relying on the short delay, the consequences of refusal and an alleged Agency policy allowing further documents to be supplied. The central issue was whether those matters justified extending time.

1. Outcome. Laws LJ refused the renewed application for permission to appeal. The decisions below had correctly refused an extension of time.
2. Applicable approach. Under rule 10(5) of the Asylum and Immigration Tribunal (Procedure) Rules 2005, an extension should be granted only where, on the balance of probabilities, special circumstances would make refusal unjust. The guidance in BO (Nigeria) made the explanation, if any, for lodging the appeal out of time the starting point. The applicant’s failure to check the deadline, and his mistaken belief that he had 28 days, provided an inadequate explanation.
3. Assessment of the circumstances. The fact that the appeal was only four days late, or that refusal had severe consequences for the applicant, did not overcome the force of the procedural rule. Nothing in the underlying decision or the applicant’s updated statement, including his reported breathing and sleeping problems and drowsiness, supplied a sufficiently pressing circumstance.
4. Evidential flexibility. The material relied on concerning the Agency’s evidential-flexibility policy did not establish that the policy had been considered or applied in this case. It showed that the policy had been applied piecemeal and was not settled or rigorous. It therefore did not create a legitimate expectation that it would be applied in a particular way, and did not alter the conclusion that there was no good enough reason for the delay.
5. The refusal of permission by David Elvin QC and Mrs Justice Davies was therefore sound. Application refused.

• Court of Appeal (Civil Division): Laws LJ refused the renewed application for permission to appeal. [2011] EWCA Civ 1558.
• Administrative Court: David Elvin QC refused judicial review permission on 23 October 2010. Mrs Justice Davies refused renewal on 9 February 2011.
• First-tier Tribunal: Immigration Judge Bailey refused to extend time for the appeal.