NA (Bangladesh) v Secretary of State for the Home Department

A late application for permission to appeal is not a nullity merely because it omits the request for an extension of time and reasons required by the Tribunal Procedure (Upper Tribunal) Rules 2008. The relevant rule requires an extension before the late application may be admitted, but does not make omission of the request invariably fatal. The Tribunal’s general power to extend time remains available. Procedural non-compliance does not itself void proceedings. The Tribunal may waive the requirement or require it to be remedied, and a party may waive the defect by failing to raise it. The discretion to extend time must be exercised justly in the circumstances.

The First-tier Tribunal allowed the appellant’s appeal against automatic deportation on human rights grounds. The Secretary of State filed an application for permission to appeal to the Upper Tribunal one day out of time. The Upper Tribunal first granted permission without addressing the delay, then admitted the appeal after hearing argument, set aside the First-tier Tribunal’s decision and dismissed the appellant’s appeal on rehearing.

The appellant sought permission to appeal to the Court of Appeal. Her revised challenge argued that the late application was invalid because it contained no request for an extension of time or reasons for the delay, and that the Upper Tribunal was therefore bound not to admit it under the Tribunal Procedure (Upper Tribunal) Rules 2008. The central issue was whether that omission made the application a nullity or whether the Upper Tribunal could extend time and address the procedural defect.

Permission to appeal refused. Lord Justice Christopher Clarke held that the proposed challenge had no realistic prospect of success and did not satisfy the second appeals test.

1. The Tribunal Procedure (Upper Tribunal) Rules 2008 did not produce the consequences contended for. Rule 21(6)(a) required a late application to include a request for an extension of time and reasons. Rule 21(6)(b) prevented admission of the late application unless the Upper Tribunal extended time. Neither provision stated that omission of the request and reasons made the application an irredeemable nullity.
2. Rule 5(3)(a) conferred an entirely general power to extend time, unfettered by the requirements in rule 21(6). The suggested construction would create manifest injustice by making the omission invariably fatal, regardless of the length or explanation of the delay and any prejudice.
3. Rule 7 confirmed that an irregularity resulting from non-compliance did not itself render proceedings or a procedural step void. The Upper Tribunal could take such action as justice required, including waiving the requirement or requiring the failure to be remedied. The approach was supported by R v Secretary of State for the Home Department, ex p Jeyeanthan [1999] EWCA Civ 3010, including its emphasis on the interests of justice and the directory character that a time limit may have where there is an express power to extend it.
4. Since the defect was not a nullity, it could be waived. The appellant had failed to rely before the Upper Tribunal on the absence of a request for an extension and reasons, and had continued not to do so in her first skeleton argument. It was therefore open to the Upper Tribunal to grant the one-day extension.

• Court of Appeal (Civil Division): On 18 April 2016, permission to appeal was refused. The court held that the proposed challenge to the Upper Tribunal’s extension of time had no realistic prospect of success and failed the second appeals test.
• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s one-day late application was admitted. The Upper Tribunal later set aside the First-tier Tribunal’s decision, allowed the Secretary of State’s appeal and dismissed the appellant’s appeal on rehearing.
• First-tier Tribunal: The appellant’s appeal against automatic deportation was allowed on human rights grounds.