Williams, R (on the application of) v First Tier Tribunal

When an appeal is lodged out of time, the explanation for the delay, supported by available evidence, is the starting point for deciding whether time should be extended. If there is no satisfactory evidenced explanation, an extension will be very unlikely, even where the delay is short or refusal may lead to removal. The strength of the proposed appeal, the consequences of refusal and the length of the delay remain relevant factors. Lack of prejudice to the respondent has no force in this context. Where the absence of an effective explanation is decisive, the tribunal need not address every other factor at length, provided its reasons show that the applicable guidance was understood and applied.

The claimant, who was detained pending deportation after a criminal conviction, received a decision notifying him of a five-working-day time limit for appealing. His notice of appeal was lodged one day late. The First-tier Tribunal refused an extension under rule 10 of the Asylum and Immigration Tribunal Procedure Rules 2005, applying BO (extension of time for appealing) Nigeria [2006] UKAIT 00035. The claimant sought judicial review, relying on detention, alleged difficulty contacting solicitors, the short delay and the seriousness of deportation. The central issue was whether the tribunal had applied the relevant guidance correctly and lawfully refused an extension.

1. Application dismissed. The refusal of an extension of time was within the competence of the First-tier Tribunal and did not warrant judicial review.
2. Under rule 10 of the Asylum and Immigration Tribunal Procedure Rules 2005, the explanation for lateness, supported by evidence, is the starting point. The tribunal may consider only the matters identified in the notice of appeal, supporting evidence and other relevant facts within its knowledge. The guidance in BO (extension of time for appealing) Nigeria [2006] UKAIT 00035 was correctly applied.
3. Relevant considerations include the explanation for delay, the strength of the proposed grounds, the consequences of refusal and the length of the delay. If no satisfactory explanation supported by available evidence is given, it is very unlikely that time should be extended. A one-day delay is not automatically de minimis: measured against a five-day time limit, it represented a 20 per cent extension and still required explanation.
4. The fact that the decision carried a threat of removal was a relevant consequence, but it did not overcome the complete absence of a satisfactory evidenced explanation. Detention alone was not an explanation, and the claimant provided no adequate evidence of attempts to contact or change solicitors or of any restriction on communications.
5. The tribunal was not required to deal expressly and laboriously with every subsidiary factor where the absence of an effective explanation was decisive. Lack of prejudice to the respondent had no force in the application. The claimant’s judicial review therefore failed. Costs were allowed as claimed, not to be enforced without leave of the court, with the usual order for assessment of Legal Services Commission costs.

The judgment does not state a prior appellate decision. It records the First-tier Tribunal’s refusal of an extension of time and dismisses the judicial review challenge to that decision.