Zakoan Ahmed Chowdhury, R (on the application of) v Secretary of State for the Home Department & Anor

The 14-day period for appealing to the First-tier Tribunal runs from service of a notice of decision which complies, or substantially complies, with the Immigration (Notices) Regulations 2003. A notice which fails to tell an individual that an appeal right exists, or wrongly says that no appeal is available, does not start time running. The question whether an appeal is in time is separate from its merits. The tribunal must not treat the notice as effective because the appeal would have been bound to fail or because correcting the defect would create procedural difficulties. An individual who learns of the appeal right may waive non-compliance by lodging an appeal.

The Secretary of State refused the respondent’s application for a residence card as an extended family member under the Immigration (European Economic Area) Regulations 2006. The notice stated that there was no right of appeal, reflecting the then-understood effect of Sala v Secretary of State for the Home Department. The Court of Appeal later held in Khan v Secretary of State for the Home Department that such a refusal was appealable.

In 2022 the respondent appealed to the First-tier Tribunal. That tribunal accepted that the decision was appealable but held that the appeal was out of time and refused an extension. The Upper Tribunal quashed that decision and declared the appeal in time. The issue before the Court of Appeal was whether the defective notice nevertheless triggered the 14-day period under rule 19(2) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014.

1. Appeal dismissed. The Upper Tribunal correctly held that the respondent’s appeal was lodged within time.
2. Rule 19(2) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 refers to a notice of decision issued in accordance with the Immigration (Notices) Regulations 2003. In context, the notice must substantially comply by giving sufficient information to enable the individual to exercise the right of appeal.
3. Regulation 5(3)(a) of the 2003 Regulations requires the notice to advise the person of the right of appeal. Consistently with OS (Russia) v Secretary of State for the Home Department, failure to comply with that requirement renders the notice invalid, subject to substantial compliance.
4. Because the notice wrongly stated that no right of appeal existed, it did not comply, or substantially comply, with regulation 5(3)(a). The 14-day period therefore did not begin until a compliant notice was sent. No such notice was sent, so the appeal lodged in 2022 was in time.
5. The tribunal deciding timeliness must address whether a valid notice was sent and whether time has expired. It must not decide the likely merits of the appeal, including whether it was bound to fail. Possible procedural or other adverse consequences did not alter the application of rule 19(2) on these facts.
6. Marepally v Secretary of State for the Home Department was not concerned with appeal time limits and did not require a different result. The observations in CM (Jamaica) v Secretary of State for the Home Department arose in a different judicial-review context and did not determine the applicable time limit.

The respondent could waive the defect by lodging an appeal after learning of the appeal right. It was unnecessary to determine the alternative respondent’s notice because the appeal was in time.

• Court of Appeal (Civil Division) — [2024] EWCA Civ 1380: appeal by the Secretary of State dismissed.
• Upper Tribunal (Immigration and Asylum Chamber) — judicial-review claim allowed; the First-tier Tribunal’s decision was quashed and the respondent’s appeal declared to have been brought in time.
• First-tier Tribunal (Immigration and Asylum Chamber) — accepted that the decision was appealable, but held that the appeal was out of time and refused an extension.