Clever Onowu (R on the application of) v First-tier Tribunal (Immigration and Asylum Chamber)

When deciding whether to extend time for seeking permission to appeal, the First-tier Tribunal and Upper Tribunal must apply the three-stage approach in Mitchell v News Group Newspapers Ltd, Denton v White and R (Hysaj) v Secretary of State for the Home Department. They must assess the seriousness or significance of the breach, consider whether there is a good reason for it, and then evaluate all the circumstances so as to deal justly with the application.

A judicial decision granting an extension must give succinct reasons which engage with the core arguments. A conclusion that admission is in the interests of justice, without analysis of the delay, its explanation and the relevant circumstances, is insufficient.

The applicant had succeeded in an appeal against removal to Italy on human rights grounds. The Secretary of State applied about 25 days late for permission to appeal to the Upper Tribunal. First-tier Tribunal Judge Cruthers extended time and granted permission, stating only that it was in the interests of justice to admit the application.

The applicant sought judicial review of that extension. The issue was the correct approach to an out-of-time application for permission to appeal under the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, and whether the First-tier Tribunal had given adequate reasons for its decision.

1. The judicial-review claim succeeded. The decision extending time, and consequently the grant of permission to appeal, were quashed. The Secretary of State’s applications remained pending for determination by the First-tier Tribunal.

2. Although the 2014 First-tier Tribunal Rules and the Upper Tribunal Rules do not prescribe a specific test for an extension of time, their overriding objective is consistent with the three-stage approach in Mitchell v News Group Newspapers Ltd, Denton v White and R (Hysaj) v Secretary of State for the Home Department. A tribunal must assess the seriousness or significance of the breach; consider why it occurred and whether there was a good reason; and evaluate all the circumstances in order to deal justly with the application. If that approach differs from that in BO and Others (Extension of time for appealing) Nigeria, the Court of Appeal authorities must be followed.

3. The common-law duty to give reasons applies to a decision granting, as well as refusing, permission to appeal. The absence of an express rule requiring reasons for a grant did not displace that duty. The reasons need not be extensive, but must engage with the core arguments, including submissions on extending time, and state succinctly the judge’s conclusion on them.

4. The First-tier Tribunal’s two-sentence decision revealed no assessment of whether a delay of about 25 days was serious or significant, no consideration of the explanation for it, and no evaluation of all relevant circumstances. Its reference to the grounds as just arguable did not cure those defects; merits will ordinarily matter at the third stage only where they are plainly very strong or very weak. The decision was wholly unreasoned and unlawful.

• Upper Tribunal (Immigration and Asylum Chamber): On judicial review, quashed First-tier Tribunal Judge Cruthers’ decision extending time for the Secretary of State to seek permission to appeal, and the consequential grant of permission.
• First-tier Tribunal (Immigration and Asylum Chamber): Judge Canavan allowed the applicant’s appeal on human rights grounds against removal to Italy. Judge Cruthers subsequently admitted the Secretary of State’s application for permission to appeal, made about 25 days late.