Nadarajah Sutharsan, R (on the application of) v The Secretary of State for the Home Department

For rule 29(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008, a person is provided with a copy of an immigration judicial-review application when the copy is received or otherwise placed in that person’s possession. Providing is not synonymous with sending. The 21-day period for an acknowledgment of service begins on the following day.

Where the copy is posted, it is deemed to have been provided on the second business day after posting, unless the contrary is proved. This interpretation gives effect to the legislative purpose of maintaining the corresponding High Court time limit and avoids allowing an applicant unilaterally to shorten the respondent’s period by selecting postal service.

The applicant contended that the respondent’s acknowledgment of service, received by the Upper Tribunal on 20 June 2019, was out of time under rule 29(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008. The respondent maintained that it was timely. It was common ground that no application for an extension of time had been made.

The applicant had sent the judicial-review application on 29 May 2019. The respondent received it on 30 May 2019. The issue was whether the 21-day period ran from the date of sending or from the date on which the respondent was provided with the application.

1. The respondent’s acknowledgment of service was in time. The applicant’s construction equated sending a copy application with providing it. That construction was inconsistent with the distinct language used in rule 29(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008.

2. The legislative history showed that the 2011 amendment was intended to replicate the High Court time limit. Under CPR 54.8(2)(a), the period runs after service of the claim form; CPR 6.14 treats postal service as occurring on the second business day after posting. The applicant’s construction would defeat that purpose.

3. The Tribunal approved the ordinary meaning identified in Bhavsar (late application for PTA: procedure), [2019] UKUT 00196 (IAC): a person is provided with a physical document when it is received or taken into that person’s possession. A sender cannot shorten the 21-day period merely by choosing post instead of personal service.

4. Although the 2008 Rules contain no express equivalent of CPR 6.14 for documents sent by one party to another, the overriding objective and rule 2(3)(b) required rule 29(1) to be interpreted so that a posted copy is deemed provided on the second business day after posting, unless the contrary is proved. Section 7 of the Interpretation Act 1978 did not appear to apply.

5. Here the respondent actually received the application on 30 May 2019. The period began on 31 May and ended on 20 June. The acknowledgment received on that date was therefore filed within time.

not stated in the judgment.