The Secretary of State for the Home Department v MSU

Where an appeal is treated as abandoned following a grant of leave under Nationality, Immigration and Asylum Act 2002, neither tribunal has jurisdiction to take substantive steps unless and until the appellant gives a valid notice electing to continue the protection appeal.

A valid notice has retrospective effect. It causes the appeal to be treated as having remained pending and validates steps taken during the provisional abandonment. The Upper Tribunal’s procedural rule against extending time does not expressly limit its statutory power under section 25 of the Tribunals, Courts and Enforcement Act 2007. The tribunal with which the appeal was pending when leave was granted determines the notice and any extension application.

MSU, a Bangladeshi national, appealed against the refusal of asylum, humanitarian protection and human-rights claims. The First-tier Tribunal dismissed the protection claims but allowed the human-rights appeal. The Secretary of State then granted MSU and his family 30 months’ leave to remain.

MSU sought to continue his protection appeal. His notice under section 104(4B) of the Nationality, Immigration and Asylum Act 2002 was late. The First-tier Tribunal had meanwhile refused permission to appeal, and permission was subsequently granted by the Upper Tribunal on the jurisdiction and time-limit issues.

The Upper Tribunal determined the effect of a notice to continue an appeal, the Upper Tribunal’s power to extend time, the tribunal competent to decide the notice, and whether time should be extended on the facts.

1. Time was extended. Sitting as judges of the First-tier Tribunal, the Tribunal extended time so that MSU’s notice received on 2 August 2019 was in time. The substantive protection appeal was consequently to be listed in the Upper Tribunal under the existing grant of permission.

2. Under section 104(4A), a grant of leave provisionally causes an in-country appeal to be treated as abandoned. A notice under section 104(4B) is a jurisdictional condition. Until a valid notice is given, neither the First-tier Tribunal nor the Upper Tribunal may take substantive steps in the appeal.

3. A valid notice operates retrospectively. The appeal is thereby treated as having been pending throughout the intervening period, and procedural acts otherwise taken without jurisdiction are validated. This construction avoids the impractical consequences of treating an appeal as permanently abandoned for an intervening period.

4. The prohibition in Upper Tribunal rule 17A against extending its procedural time limit does not expressly limit the Upper Tribunal’s statutory power under section 25 of the Tribunals, Courts and Enforcement Act 2007. Section 25 therefore supplies a power to extend time for the notice, exercisable as the High Court would exercise it.

5. Competence depends on the tribunal before which the appeal was pending when leave was granted. Here the grant pre-dated the purported First-tier Tribunal permission proceedings. Those proceedings, and the later Upper Tribunal steps, lacked jurisdiction unless retrospectively validated. The First-tier Tribunal therefore had to determine the notice and extension application.

6. The 15-day delay was substantial and attributable to the appellant’s solicitors. Nevertheless, the grounds were arguable and the official material on the notice procedure was seriously inaccurate and out of date. By a narrow margin, justice required an extension. The Tribunal stressed that this discretionary conclusion created no precedent for other cases.

• Upper Tribunal (Immigration and Asylum Chamber): extended time for the section 104(4B) notice and directed that the protection appeal be listed under the grant of permission.
• First-tier Tribunal: allowed MSU’s human-rights appeal but dismissed his refugee and humanitarian-protection claims. It later refused permission to appeal on the protection issues.