Marinela Isaku & Anor, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber)

Applications to extend time for appealing in public law proceedings require a structured three-stage assessment: the seriousness or significance of the breach, the reason for it, and all the circumstances so that the court can deal with the application justly. The need for efficient and proportionate litigation and compliance with rules, practice directions and orders receives particular weight.

A lack of good reason does not automatically determine the application. The merits may be considered as part of the overall circumstances where they are very strong or very weak, and issues of public importance may properly be taken into account. The categories of public interest are not closed.

The claimants, Albanian siblings who had become British citizens, challenged a decision of Upper Tribunal Judge Kebede dated 7 June 2024. The Upper Tribunal had extended the Secretary of State’s time to apply for permission to appeal against a First-tier Tribunal decision allowing the claimants’ appeals against deprivation of British citizenship.

The Secretary of State’s application was made approximately 14 weeks late because the allocated Home Office caseworker failed to review the decision before leaving employment. The First-tier Tribunal refused the extension, but the Upper Tribunal granted it, applying the principles in R (Onowu) v First-tier Tribunal.

The issue was whether the Upper Tribunal’s exercise of discretion disclosed an arguable error of law warranting permission for judicial review.

1. Application refused. The claimants had not shown any arguable error of law in the Upper Tribunal’s decision.
2. The Upper Tribunal was entitled to find that the delay was serious and significant. It correctly recognised that no good reason had been established, but also correctly proceeded to the third stage of the applicable test.
3. At the third stage, the Upper Tribunal was entitled to accept the Secretary of State’s specific and clear explanation for the delay. The description of the circumstances as unusual and an oversight was open to it. Further supporting evidence was not required, and there was no procedural unfairness.
4. The Upper Tribunal expressly considered the factors reflected in CPR rule 3.9: efficient and proportionate litigation and compliance with rules. It was also entitled to take account of the pending appeal concerning other family members and the resulting limited time saving.
5. The merits of an appeal are generally irrelevant to an extension application unless the grounds are very strong or very weak. They may nevertheless form part of the overall circumstances. The Upper Tribunal was entitled to consider the arguable construction of the Nationality Instructions and the public importance of issues concerning nationality fraud and the position of children involved in parental deception.
6. Hysaj and BR(Iran) did not establish an exhaustive list of issues capable of constituting matters of public interest. The Upper Tribunal therefore lawfully exercised its discretionary judgment. Mere disagreement with that judgment did not justify judicial review.

1. High Court (Administrative Court) — permission for judicial review was refused in [2025] EWHC 313 (Admin).
2. Upper Tribunal (Immigration and Asylum Chamber) — on 7 June 2024, Judge Kebede extended time and admitted the Secretary of State’s application for permission to appeal.
3. First-tier Tribunal — on 1 May 2024, Judge Moon refused the Secretary of State’s application for an extension of time; the underlying decision of Judge Lawrence on 6 December 2023 had allowed the claimants’ appeals against deprivation of citizenship.