Osman Mahdi Mohammed v Secretary of State for Home Department

Under rule 24(4) of the Asylum and Immigration Tribunal (Procedure) Rules 2005, the First-tier Tribunal must decide whether to extend time before it can admit a late application for permission to appeal. It has no power to grant permission conditionally while leaving that question unresolved.

The discretion depends on the whole delay. Relevant factors include its length, the reasons given, the appeal’s merits and prejudice to the respondent. An arguable error of law is not decisive. A very substantial and inadequately explained delay, coupled with material prejudice caused by changed circumstances, will ordinarily justify refusal to extend time.

The appellant, a Somali national, had appealed against a decision to deport him. His appeal was dismissed in a determination promulgated on 4 January 2011. On 4 June 2013, 881 days after the time limit had expired, he applied to the First-tier Tribunal for permission to appeal to the Upper Tribunal.

A Designated Judge purported to grant permission conditionally upon proof of special circumstances justifying an extension of time. The Upper Tribunal held that the issue remained for the First-tier Tribunal. With the parties’ consent, it reconstituted itself as that tribunal to determine whether time should be extended and the application admitted.

1. The application was refused and was not admitted. The appeal to the Upper Tribunal could therefore not proceed.

2. Rule 24(4) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 is conjunctive. For a late application, the First-tier Tribunal must first decide whether special circumstances make it unjust not to extend time. Unless it extends time, it must not admit the application. A conditional grant of permission which leaves that decision outstanding is defective. Boktor and Wanis (late application for permission) Egypt [2011] UKUT 00442 (IAC) concerns the corrective position where the First-tier Tribunal has failed to decide timeliness; it does not permit that tribunal to avoid the decision.

3. The Upper Tribunal could reconstitute itself as the First-tier Tribunal because the latter had not completed its statutory task. A First-tier Tribunal judge must determine a late application on the papers. If it refuses to admit the application, the applicant may renew the application to the Upper Tribunal.

4. In exercising the extension discretion, the Tribunal applied the guidance in Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 60 (IAC). It considered the length and reasons for the delay, the merits, and prejudice to the respondent. The merits could not be a trump card. The 881-day delay was extraordinary and lacked a reasonable explanation for substantial periods. Although the proposed appeal had arguable merit, intervening changes concerning Somalia and the need for substantially updated evidence would significantly prejudice the respondent.

5. The original determination had been properly promulgated. Neither the appellant, his representatives nor the respondent had notified the Tribunal of the changed address as required by rule 56.

• Upper Tribunal (Immigration and Asylum Chamber): Sitting as the First-tier Tribunal, it refused to extend time and did not admit the late application for permission to appeal.

• First-tier Tribunal: The appellant’s appeal against the deportation decision was dismissed in a determination promulgated on 4 January 2011. A later permission decision left timeliness unresolved through an impermissible conditional grant.