The Secretary of State for the Home Department v Treza Sabry Eshak Boktor & Anor

A grant of permission to appeal made on an out-of-time application is conditional where the judge granting permission has not considered whether time should be extended. Under rule 24(4) of the Asylum and Immigration Tribunal (Procedure) Rules 2005, the Tribunal must decide whether special circumstances make it unjust not to extend time; otherwise it must not admit the application.

The explanation must satisfactorily cover the whole delay and ordinarily be supported by readily available evidence. The Tribunal may consider the grounds’ strength, consequences, delay, prejudice and any procedural default. Strong grounds alone cannot justify an extension.

The claimants had successfully appealed to an Immigration Judge against decisions to remove them as illegal entrants. The determination was promulgated on 9 February 2011.

The Secretary of State faxed an application for permission to appeal on 17 March 2011, after the five-day time limit had expired. The application relied on an asserted administrative oversight following a change in service procedure during the drafter’s maternity leave. Permission was granted without addressing lateness.

Before the Upper Tribunal, the claimants contended that the grant was ineffective unless time was extended. The central issue was whether special circumstances made it unjust not to extend time.

1. The application was not admitted. Upper Tribunal Judge Allen declined to extend time. The Immigration Judge’s decision allowing the claimants’ appeals therefore stood.

2. Rule 24(4) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 required a separate decision on an out-of-time application. Applying AK (Tribunal appeal – out of time) Bulgaria [2004] UKIAT 00201, the grant of permission was conditional where lateness had not been considered. It became effective only if the Tribunal extended time. Rule 24(4)(b) reinforced that conclusion because the Tribunal must not admit the application unless it extends time.

3. The special-circumstances discretion required a structured assessment. The explanation must address the whole period of delay and be supported by evidence that should readily be available. The strength of the grounds, consequences, length of delay, prejudice and procedural defaults may be relevant, but strong grounds cannot alone displace a time limit. This approach was drawn from BO and Others (Extension of the time for appealing) Nigeria [2006] UKAIT 00035, whose guidance had been endorsed in TR v Asylum and Immigration Tribunal [2010] EWHC 2055 (Admin).

4. The Secretary of State’s explanation was inadequate. It did not explain why the drafted grounds were not faxed, the relevant maternity-leave and procedural-change dates, or the three-day delay after the error was discovered. The delay was significant, the grounds were not especially strong, and no procedural failing by the claimants was identified. Taken cumulatively, those matters did not establish special circumstances making refusal unjust.

• Upper Tribunal (Immigration and Asylum Chamber): Declined to extend time for the Secretary of State’s application for permission to appeal. The unaddressed grant of permission was ineffective.

• First-tier Tribunal: An Immigration Judge allowed the claimants’ appeals against removal decisions in a determination promulgated on 9 February 2011.