MH (Bangladesh) & Anor v Secretary of State for the Home Department

In a renewed application concerning an immigration appeal, a two-month delay in filing a notice of appeal requires a good explanation; adviser error alone is not ordinarily sufficient. The court must nevertheless consider all the circumstances, including the apparent strength and importance of the proposed appeal. A technical or potentially arguable issue may justify extending time and granting permission, particularly where the lower tribunal decided the matter before later Supreme Court guidance adopted a less technical approach to the Immigration Rules. Permission to amend the grounds may be granted where the proposed issue was fairly before the Upper Tribunal and the amendment cures a material defect identified in the initial application.

The applicants, a Bangladeshi husband and wife, challenged refusal of further leave to remain under the Immigration Rules. The First-tier Tribunal allowed some issues but dismissed the appeal, principally because conditional funding arrangements did not establish that the required funds were unconditionally available, and because later evidence could not be relied upon. The Upper Tribunal dismissed the appeal, following Akhtar & Another v Secretary of State for the Home Department [2014] UKUT 00297.

The applicants filed their notice of appeal to the Court of Appeal about two months late. They sought an extension of time, permission to amend the grounds, and permission to appeal. The central issues were whether the proposed grounds were arguable and whether the delay should be excused in the circumstances.

1. The application for an extension of time, permission to amend the grounds of appeal, and permission to appeal was granted, subject to a formal application for permission to amend.

2. The prescribed period for filing the notice was 28 days. A two-month delay caused by the legal representatives’ mistaken attempt to renew permission before the Upper Tribunal was not trivial, and no good explanation had been provided. Adviser error could not justify extending time in every case, since that would weaken compliance with the procedural rules.

3. Delay is not determinative. The court must consider all the circumstances, including the apparent strength of the proposed appeal. The importance of the issues and other relevant circumstances may justify an extension despite unexplained delay.

4. The court noted that the Upper Tribunal and the initial application for permission had preceded the Supreme Court’s decision in Mandalia v Secretary of State for the Home Department [2015] UKSC 59, which endorsed a less technical approach to the Immigration Rules. Grounds concerning the interpretation of the funding requirements and evidential flexibility were therefore arguable, although the judge expressed grave doubts about the merits of the second ground.

5. The proposed third ground, concerning the missing landline telephone number and evidential flexibility, had been fairly raised before the Upper Tribunal because the earlier application and the permission granted were framed broadly. Permission to add it was accordingly granted.

• Court of Appeal (Civil Division): granted an extension of time, permission to amend the grounds, and permission to appeal.
• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal.
• First-tier Tribunal: dismissed the appeal on the remaining funding and Article 8 issues after deciding certain issues in the applicants’ favour.