The Secretary of State for the Home Department v Elisha Ndwanyi

A clear and settled First-tier Tribunal decision that an application for permission to appeal was made in time is a procedural preliminary excluded decision. The Upper Tribunal has no jurisdiction to reverse it, even if it is legally wrong and both parties agree. The proper challenge is judicial review.

The Upper Tribunal may consider an extension of time only where the First-tier Tribunal overlooked timeliness or the explanation for delay. The slip rule cannot correct a decision which accurately records the judge’s intended conclusion, however erroneous that conclusion may be.

The Secretary of State appealed against the First-tier Tribunal’s decision allowing a Rwandan national’s protection and Article 3 claim. The Secretary of State’s application for permission to appeal had arrived one day late, but the First-tier Tribunal judge recorded that it was in time after taking Christmas bank holidays into account.

Both parties accepted that this calculation was wrong. The preliminary issue was whether the Upper Tribunal could reverse the decision on timeliness, extend time itself, or correct the error under the slip rule. If the appeal remained valid, the substantive issue was whether the First-tier Tribunal had given adequate reasons for accepting the protection account.

1. The appeal was dismissed. The First-tier Tribunal’s express decision that the permission application was in time was a preliminary procedural decision and therefore an excluded decision under the Appeals (Excluded Decisions) Order 2009. Following NA (Excluded decision; identifying judge) Afghanistan [2010] UKUT 444 (IAC), the Upper Tribunal had no jurisdiction to reverse it. Consent could not confer jurisdiction.

2. The application had in fact been one day late under rule 33(2) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. The First-tier Tribunal judge nevertheless addressed timeliness, considered the stated reason for delay and made a clear finding that the application was in time. This was not a case in which timeliness or the explanation for delay had been overlooked.

3. Accordingly, the conditional-grant approach in Boktor and Wanis (late application for permission) Egypt [2011] UKUT 00442 (IAC) did not apply. The judge was functus officio once the decision was final. Rule 31 could not assist because the decision was not contrary to the judge’s intention; the slip rule does not permit second thoughts. Judicial review was the only available means of challenging the timeliness decision.

4. On the merits, the First-tier Tribunal had given clear and cogent reasons for accepting the core of the protection account. Its measured evaluation of the expert report, the wider evidence and the appellant’s circumstances was open to it. The grounds disclosed disagreement with permissible findings, not an error of law. The First-tier Tribunal’s decision therefore stands.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal against the First-tier Tribunal decision was dismissed.
• First-tier Tribunal: In a decision promulgated on 20 December 2019, the Tribunal allowed the appeal on asylum and Article 3 grounds.