MS (Pakistan) v Secretary of State for the Home Department

A very lengthy and insufficiently justified delay in filing an appellant’s notice may by itself justify refusing an extension of time. Financial difficulty does not necessarily justify such delay.

An apparent factual error in a decision on a fresh claim is not automatically fundamental. Its materiality must be assessed in the context of the applicable criteria and the other circumstances. Where other matters independently support the same outcome, the error may not provide realistic grounds for appeal.

The Secretary of State rejected the applicant’s fresh claim under paragraphs 353 and 353B of the Immigration Rules on 4 October 2012. The applicant challenged that decision by judicial review.

The Administrative Court, in a decision dated 10 October 2013, held that an apparent error concerning the period during which the applicant had failed to report was immaterial. Permission to appeal was refused on the papers. The applicant renewed the application in the Court of Appeal, arguing that the delay should be excused and that the alleged error was fundamental.

Application refused. Davis LJ refused the renewed application for permission to appeal on two independent grounds.

1. The appellant’s notice had been filed many months out of time. The applicant relied on difficulty raising funds, but the delay was exceptionally lengthy and remained unjustified. The courts were entitled to take a relatively strict approach to such delay. No extension of time should therefore be granted.
2. There were in any event no realistically arguable prospects of success. The Secretary of State had apparently misstated the period for which the applicant had been an absconder, describing it as approximately 9.5 years rather than about 2.5 years. That did not make the error fundamental when assessed against the relevant criteria and the overall circumstances.
3. The applicant had been unlawfully in the United Kingdom for virtually the whole relevant period. There had also been a significant failure to comply with reporting conditions and evidence of illegal work. Those matters were relevant independently of the precise duration of the absconding period.
4. The Deputy Judge was entitled to conclude that the Secretary of State would have reached the same decision even without the alleged error. The case of ML(Nigeria), relied on by the applicant, was materially different and did not assist the proposed appeal.

Each ground was sufficient to refuse the renewed application.

1. Court of Appeal (Civil Division) — Permission having been refused on the papers by Sir Maurice Kay, Davis LJ refused the renewed application for permission to appeal. He held that the delay was unjustified and that there were no realistic prospects of success.
2. High Court of Justice, Queen’s Bench Division, Administrative Court — Deputy Judge Geraldine Clark dismissed the challenge, holding that the apparent error concerning the reporting period was immaterial and that the Secretary of State would have made the same decision.