Chetan Bhavsar v The Secretary of State for the Home Department

Where an application to the First-tier Tribunal for permission to appeal is late and time is not extended, the First-tier Tribunal may refuse to admit the application. It should do so expressly, rather than refuse permission on the merits.

A refusal to admit engages rule 21(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008. The Upper Tribunal may then admit a subsequent application only where it is in the interests of justice. A failure to give the reason required by rule 21(7)(a) does not itself remove the Upper Tribunal’s jurisdiction.

The appellant, an Indian national, appealed against the refusal of his human-rights claim. The First-tier Tribunal dismissed his appeal, finding that he could reintegrate in India and that removal was proportionate under Article 8.

His application to the First-tier Tribunal for permission to appeal arrived late. The First-tier Tribunal refused permission, rather than stating that it refused to admit the application. The Upper Tribunal first considered whether rule 21(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 applied and then determined the substantive grounds. Those grounds concerned an erroneous finding that he had overstayed and a contention that he should receive short further leave to continue studies.

1. Appeal dismissed. The First-tier Tribunal had wrongly described the appellant as an overstayer. His leave had been extended by section 3C of the Immigration Act 1971. The error was nevertheless immaterial because the appellant’s Article 8 appeal could not have succeeded.

2. A human-rights appeal does not provide compensatory further leave merely because a student’s studies have been disrupted or funds have been lost. The appellant had no viable plan or funds to resume study, and his difficulties did not establish that removal was disproportionate. Ahsan & Others v Secretary of State for the Home Department [2017] EWCA Civ 2009 concerned section 10 removal decisions and did not assist on these facts.

3. Rule 21(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 did not apply because the First-tier Tribunal had formally refused permission; it had not refused to admit the application. In any event, failure to comply with rule 21(7)(a) is an irregularity and does not itself deprive the Upper Tribunal of jurisdiction.

4. The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 do not prevent the First-tier Tribunal from refusing to admit a late application for permission to appeal where it declines to extend time or waive the requirement. Henceforth, it should state expressly that the application is not admitted, give reasons, and notify the party of the right to apply to the Upper Tribunal. A subsequent application then falls within rule 21(7), so that delay before the First-tier Tribunal is not disregarded.

5. The Upper Tribunal declined to set aside the First-tier Tribunal’s decision under section 12 of the Tribunals, Courts and Enforcement Act 2007.

• Upper Tribunal (Immigration and Asylum Chamber): appeal dismissed; the First-tier Tribunal’s dismissal of the human-rights appeal was not set aside.
• First-tier Tribunal (Immigration and Asylum Chamber): dismissed the appellant’s appeal against refusal of leave to remain on private- and family-life grounds. It later refused permission to appeal following a late application.