Hossain & Ors v The Secretary of State for the Home Department

When deciding whether to extend time for an oral renewal of permission, a tribunal must apply the three-stage approach in R (Hysaj) v SSHD [2014] EWCA Civ 1633, including consideration of the underlying merits in the round. A bare solicitor’s assertion that a decision was received late, unsupported by evidence explaining the delay or office records, may carry no weight. The merits may be assessed where the proposed challenge is plainly weak. A late, unparticularised Article 8 argument, absent from the original pleaded case and unsupported by evidence of relevant personal circumstances, may not improve those merits. Permission may therefore be refused where neither the extension application nor the underlying challenge is arguable.

The applicant’s Tier 1 (General) leave was cancelled after the Secretary of State concluded that financial figures relied on for the grant of leave were inconsistent with his tax return. The Upper Tribunal refused permission for judicial review on paper and later refused an application to renew the matter orally and to extend time. Gross LJ subsequently refused permission to appeal.

The applicant renewed the application before the Court of Appeal. He argued that the Upper Tribunal had wrongly disregarded a solicitor’s annotation asserting late receipt of the decision, had failed to apply the three-stage approach to extensions of time, and had failed to consider Article 8. The central issue was whether those matters made the proposed appeal arguable.

Application refused. The renewed application for permission to appeal could not succeed.

1. The request for an oral renewal hearing was filed about three weeks after the nine-day period provided by Upper Tribunal Rules 2008, rule 30. The Upper Tribunal was entitled to refuse an extension. The annotation on the application form was a bare assertion that the decision had been received late. It contained no explanation for the discrepancy with the tribunal’s records, no postage evidence, and no account of the office system. The later witness statement did not cure those deficiencies.
2. The argument that the Upper Tribunal had failed to apply R (Hysaj) v SSHD [2014] EWCA Civ 1633 misunderstood its judgment. The judge had addressed the first two stages and had then considered the overall merits in the round. That was an application of the third stage, not a separate and irrelevant observation. The evidence concerning the claimed business profits entitled the Secretary of State to conclude that the figures relied on for the Tier 1 application had been fabricated. The applicant’s counsel accepted that conclusion was open to her.
3. The Article 8 point provided no arguable ground. The determination letter did not refer to an Article 8 assessment, but the point had not formed part of the original grounds of judicial review. It appeared only in amended grounds before the Upper Tribunal and was absent from the skeleton argument and grounds of appeal. It was advanced as a bald technical assertion, without evidence of the applicant’s relevant personal circumstances. The applicant’s limited leave was also due to expire shortly. The point therefore did not alter the overall merits.

Having considered the case in the round, the court agreed with the two Upper Tribunal judges and Gross LJ that there was no merit in the proposed appeal, particularly on the extension-of-time issue. Application refused.

• Court of Appeal (Civil Division): Lord Justice McFarlane refused the renewed application for permission to appeal on 6 March 2018.
• Court of Appeal (Civil Division): Gross LJ refused permission to appeal on paper on 11 December 2017.
• Upper Tribunal: Judge Goldstein refused permission for judicial review and refused an extension of time for the oral renewal application after a hearing on 24 August.
• Upper Tribunal: Judge McGeachy refused the original application for judicial review on paper on 16 May 2016.