SA v The Secretary of State for the Home Department

An application for permission to appeal made within time is not invalid merely because it fails to comply with rule 21(4) of the Tribunal Procedure (Upper Tribunal) Rules 2008. The Upper Tribunal must decide it. Rule 7 permits the Tribunal to require the defect to be remedied and, if grounds are not supplied by a short stated deadline, to determine permission on the material available.

An applicant must not use a timely but groundless application to circumvent the deadline for producing final grounds. If the grounds do not exist by the rule 21(3) deadline, the proper course is to file them when ready and seek an extension of time. A judge deciding an unsupported application must nevertheless consider whether an obviously arguable ground warrants permission.

The appellant, a Bangladeshi national, sought permission to appeal against the First-tier Tribunal’s dismissal of her asylum, humanitarian-protection and human-rights appeal. Her application to the Upper Tribunal was received one day late and stated that grounds were attached, but no grounds accompanied it.

After repeated unsuccessful requests and directions to her former representatives, the Upper Tribunal received final grounds within a later direction. The Tribunal listed the application both to decide her position and to give guidance on the effect of non-compliance with rule 21(4) of the Tribunal Procedure (Upper Tribunal) Rules 2008.

The central issues were the validity and management of a non-compliant application, whether time should be extended, whether the appellant could rely on the late grounds, and whether those grounds disclosed an arguable error of law.

1. Permission was granted. Time was extended for the application, and the appellant was permitted to rely on her Upper Tribunal grounds. The grounds disclosed arguable material errors in the First-tier Tribunal’s treatment of documentary and witness evidence.

2. An in-time application that does not comply with rule 21(4) remains a valid application. Rule 7(1) provides that procedural irregularity does not itself render proceedings or a procedural step void. Neither rule 21(4) nor the Rules state that non-compliance invalidates the application or removes the Tribunal’s jurisdiction. This construction also avoids unjust consequences for merely formal defects.

3. Where grounds are absent contrary to rule 21(4)(e), the Tribunal may require them under rule 7(2)(b), normally within a short period, and warn that the application will then be decided on the material available. Deciding an unsupported application is not equivalent to striking out: the judge must still consider whether there is an obviously arguable ground under the approach in AZ (error of law: jurisdiction; PTA practice) Iran [2018] UKUT 245 (IAC).

4. The Tribunal rejected an approach that would ordinarily defer decision until repeated attempts had been made to obtain grounds. It would undermine the statutory deadline and permit abuse. If final grounds did not exist by the rule 21(3) deadline, filing an application without them to gain time is an abuse of process, or akin to one. The proper course is to file the completed application when the grounds are ready and seek an extension if necessary.

5. For omissions of the appellant’s name and address, the Tribunal will require the representative either to supply them or confirm that the appellant has been warned of the risk of not receiving Tribunal notifications. In this case, however, successive directions had effectively waived the earlier breach, and the final grounds were filed within the final direction. Fairness therefore required their admission.

6. The First-tier Tribunal arguably overlooked affidavits capable of evidencing the alleged persecutor’s existence and failed adequately to engage with the appellant’s sister’s materially different witness statement. Those matters were capable of affecting the credibility findings. The appeal was to be listed for an error-of-law hearing, with a direction to file and serve a correctly indexed and ordered First-tier Tribunal bundle.

• Upper Tribunal (Immigration and Asylum Chamber): Granted permission to appeal, extended time by one day, permitted reliance on the final grounds, and directed an error-of-law hearing.
• First-tier Tribunal: Judge of the First-tier Tribunal Chohan refused permission to appeal in a decision sent on 30 March 2021.
• First-tier Tribunal: Judge of the First-tier Tribunal Karbani dismissed the appellant’s asylum, humanitarian-protection and human-rights appeal in a decision promulgated on 14 January 2021.