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

Where an Upper Tribunal application for permission to appeal to the Court of Appeal is out of time, and the tribunal declines to extend time, an order refusing to admit the application is treated as a refusal of permission. The Court of Appeal therefore has jurisdiction, but the special appeal period does not erase the earlier delay. Tribunal time limits must be rigorously enforced. Permission should not be granted where no extension was sought below and the delay is unexplained, save in exceptional cases of manifest injustice. Substantive failure to provide required evidence under the Immigration Rules is not de minimis merely because the underlying business operates or documents remain legally valid.

The appellant, a Bangladeshi national, sought further leave to remain as a Tier 1 (Entrepreneur) migrant. The Secretary of State refused the application because the supporting advertising material and contract lacked prescribed information under Appendix A to the Immigration Rules.

The First-tier Tribunal dismissed the appeal and held that Article 8 of the Convention was not engaged. The Upper Tribunal dismissed the appeal and later refused to admit the appellant’s application for permission to appeal to the Court of Appeal because it was substantially out of time.

The Court of Appeal considered whether it had jurisdiction, whether the proposed appeal satisfied the second appeals test, and whether the delay in the tribunal below could be excused.

1. The Upper Tribunal Rules required an out-of-time application for permission to appeal to be refused where no extension was sought or the tribunal declined to extend time. Judge Kekic’s order, although expressed as a refusal to admit the application, therefore had to be read as a refusal of permission. The Court of Appeal had jurisdiction under Tribunals, Courts and Enforcement Act 2007, section 13.
2. The special 28-day period in Civil Procedure Rules 1998, Practice Direction 52D, paragraph 3.3, did not make the appellant’s application timely. Following Ozdemir v Secretary of State for the Home Department [2003] EWCA Civ 167, the ordinary time limit ran from the substantive tribunal decision where the earlier tribunal application had been rejected for procedural default. The Court of Appeal could extend time only on a justified application and had to enforce tribunal time limits rigorously.
3. The appellant had made no application to the Court of Appeal for an extension of time and had not provided a sufficient explanation for the earlier delay. The second appeals test was also unsatisfied: the proposed appeal raised no important point of principle or practice and no other reason justified allowing it to proceed.
4. The substantive challenge was hopeless. The missing evidence concerned active trading and amounted to substantive, rather than procedural, non-compliance. The example in MD (Jamaica) v SSHD [2010] EWCA Civ 213 was distinguishable. Paragraph 245AA of the Immigration Rules required sufficient reason to believe that the requested evidence existed before the Secretary of State needed to seek further information, as explained in Rodriguez v SSHD [2014] EWCA Civ 2. No such basis was shown.
5. An application under rule 43 of the Upper Tribunal Rules was the appropriate route for any alleged failure to receive notice. Permission to appeal was refused and the appeal was dismissed.

1. Court of Appeal (Civil Division) — [2017] EWCA Civ 437: permission to appeal refused and appeal dismissed.
2. Upper Tribunal — Judge Davey dismissed the appeal on 29 April 2014. Judge Kekic refused to admit the later application for permission to appeal to the Court of Appeal on 25 March 2015 because it was out of time.
3. First-tier Tribunal — Judge Lawrence dismissed the immigration appeal on 11 October 2013.