THE SECRETARY OF STATE FOR THE HOME DEPARTMENT v ELISHA NDWANYI

A clear First-tier Tribunal decision that an application for permission to appeal was made in time is an excluded decision under the Appeals (Excluded Decisions) Order 2009. It cannot be reversed by the Upper Tribunal on appeal, even where both parties agree that it is wrong. Where timeliness was considered and decided, the Upper Tribunal cannot treat the issue as overlooked and exercise its own discretion to extend time. Judicial review may be the appropriate challenge. The slip rule cannot correct an intended but legally erroneous decision. Disagreement with findings available on the evidence does not establish an error of law.

The Secretary of State appealed to the Upper Tribunal against a First-tier Tribunal decision promulgated on 20 December 2019, which had allowed the respondent’s asylum and Article 3 ECHR appeal. Permission to appeal was granted although the First-tier Tribunal judge recorded that the application was in time, despite its having arrived one day late.

Both parties accepted that the timeliness decision was wrong. The issues were whether the Upper Tribunal could reverse or bypass that decision, whether the slip rule applied, and whether the First-tier Tribunal had materially erred in its assessment of the evidence and expert report.

1. The application for permission to appeal was one day out of time. Judge Chohan had nevertheless considered timeliness and clearly decided that it was in time. Under the Appeals (Excluded Decisions) Order 2009, the decision was an excluded preliminary decision. Following NA (Excluded decision; identifying judge) Afghanistan [2010] UKUT 444 (IAC), the Upper Tribunal had no jurisdiction to reverse it, and the parties could not confer jurisdiction by agreement.
2. The principles in Boktor and Wanis (late application for permission) Egypt [2011] UKUT 00442 (IAC) and Samir (FtT Permission to appeal: time) [2013] UKUT 3 (IAC) concerned cases where timeliness had been overlooked. They did not apply where the First-tier Tribunal had reached a clear, albeit erroneous, decision. Judicial review was the appropriate route.
3. Paragraph 31 of the Procedure Rules did not assist. The decision recorded the judge’s actual intention and was not an accidental slip or omission. The principle in Bristol-Myers Squibb Company v Baker Norton Pharmaceuticals Inc and Napro Biotherapeutics Inc [2001] EWCA Civ 414 confirmed that the slip rule cannot enable second thoughts.
4. The Upper Tribunal proceeded to the merits because the grant of permission had not been disturbed by judicial review. The First-tier Tribunal had engaged fully and even-handedly with the evidence and expert report, and had given clear and cogent reasons. The challenge amounted to disagreement with findings available on the evidence and did not establish an error of law. The Secretary of State’s appeal was dismissed.

• First-tier Tribunal. Judge Cox allowed the respondent’s asylum and Article 3 ECHR appeal in a decision promulgated on 20 December 2019.
• Upper Tribunal (Immigration and Asylum Chamber). The Secretary of State appealed. The Upper Tribunal rejected the jurisdictional and merits challenges and dismissed the appeal.