The Secretary of State for Home Department v Sultan Ahmed Samir

Where a late application for permission to appeal to the Upper Tribunal is granted without any decision on extending time, the grant is conditional. The subsequent decision whether to extend time remains part of the First-tier Tribunal’s original decision on the permission application.

If the application is not admitted, the applicant may renew the application to the Upper Tribunal under rule 21(7). An applicant seeking an extension must explain the whole period of delay. Administrative error, including an employee misplacing a case within a large public authority, will not ordinarily justify an extension where the matter was initially ignored and the proposed appeal lacks strong prospects of success.

The Secretary of State applied late to the First-tier Tribunal for permission to appeal against Judge Manuel’s determination allowing Sultan Ahmed Samir’s immigration appeal. The application explained that the determination had been misplaced. The First-tier Tribunal granted permission without addressing lateness.

Deputy Upper Tribunal Judge Lever treated that grant as conditional, refused to extend time, and did not admit the application. The Secretary of State then applied to the Upper Tribunal under rule 21(7), challenging that refusal and seeking an extension. The central issue was whether Judge Lever’s decision formed part of the First-tier Tribunal’s permission process and, if so, whether the application should now be admitted.

1. The Upper Tribunal declined to admit the Secretary of State’s application. There was therefore no appeal pending before it.

2. The Tribunal followed Boktor and Wanis (late application for permission) Egypt [2011] UKUT 00442 (IAC). Under rule 24 of the Asylum and Immigration Tribunal (Procedure) Rules 2005, an out-of-time application must be admitted before a grant of permission can take effect. A grant made without considering lateness is conditional upon the later decision whether time should be extended.

3. That later decision remains part of the First-tier Tribunal’s decision on the application. A judge of the Upper Tribunal addressing the overlooked issue must be understood to sit as a judge of the First-tier Tribunal. If the application is then not admitted, rule 21(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 permits a renewed application to the Upper Tribunal.

4. The Secretary of State’s renewed application did not comply with rule 21(7)(a), because it did not repeat or amplify the original reasons for lateness. Although the Tribunal did not decide whether that defect alone invalidated the application, it was relevant to the interests of justice.

5. Time ran from receipt of Judge Manuel’s determination. An application made on 25 July 2011 was five days late. A late applicant must explain the whole period, including the time when an in-time application could have been made. Here there was no explanation for the first three working days, followed by an individual administrative error. The size and resources of the Secretary of State’s organisation did not excuse compliance with time limits. The grounds did not have a high prospect of success, and no substantial injustice arose from allowing Judge Manuel’s determination to stand.

• Upper Tribunal (Immigration and Asylum Chamber): The Tribunal declined under rule 21(7) to admit the Secretary of State’s renewed application for permission to appeal.

• First-tier Tribunal process: Deputy Upper Tribunal Judge Lever, treated as completing the First-tier Tribunal’s permission process, refused to extend time and did not admit the Secretary of State’s late application.

• First-tier Tribunal: Judge Manuel allowed the claimant’s appeal, finding that he was not excluded from the Refugee Convention and was entitled to indefinite leave to remain under the applicable policy.