Hakim-Hashemi v The Secretary of State for the Home Department

When an application to appeal is late, the court must weigh the merits and wider public interest against the seriousness and consequences of the delay. Persistent failures to understand or comply with time limits, rules and court orders may create a substantial obstacle to an extension of time. The public interest may nevertheless justify an extension where the proposed appeal raises a strongly arguable issue with consequences for other cases, even if the decision under challenge is not formally binding as a precedent. A grant of permission may be made conditional on payment of the respondent’s reasonable costs. Parties and their advisers must independently establish the applicable time limit, seek advice where an order is unclear, provide a full explanation of delay, and apply prospectively for extensions where a deadline is at risk.

The Secretary of State sought permission to appeal from the Upper Tribunal (Immigration and Asylum Chamber) determination issued on 14 October 2024, together with extensions of time for the appellant’s notice and for late evidence, and permission to amend the grounds.

The respondent, an Iranian national, had been excluded from Refugee Convention protection under article 1F(b), but was granted restricted leave because removal would breach articles 2 and 3 of the European Convention on Human Rights. The First-tier Tribunal dismissed his appeal. The Upper Tribunal set that decision aside, preserved its findings of fact and allowed the appeal in a determination which the Secretary of State sought to challenge.

The Court of Appeal considered whether the procedural defaults should be excused, whether the appeal remained sufficiently non-academic, and whether its arguability and potential effect on other cases justified permission.

1. Applications granted. The court extended time for the appellant’s notice, granted permission to appeal, admitted the late evidence and permitted amendment of the appellant’s notice. Permission was granted only narrowly and on condition that the Secretary of State undertake to pay the respondent’s reasonable costs of resisting the appeal.
2. The delay was serious. The Secretary of State and her advisers failed to understand the Upper Tribunal’s refusal of permission and of an extension of time, failed to identify the applicable time limit for appealing to the Court of Appeal, left further delay unexplained and served evidence in breach of an order. The failures were described as extraordinary and woeful. The court took account of the respondent’s prejudice, including the age of the dispute and his justified expectation that his refugee status was secure.
3. Against those matters, the merits of the proposed appeal were strongly arguable and there was a public interest in resolving an issue affecting other cases. The appeal was not academic. Although the Upper Tribunal determination was not a starred determination and was not formally binding on other Upper Tribunal constitutions, it would be highly problematic for the Secretary of State simply not to follow it while it stood, given the trenchant reasoning of an experienced tribunal.
4. The court applied the approach in Denton v White [2014] EWCA Civ 906, including the need to end a culture of non-compliance. The balance came down narrowly in favour of granting the applications. The Secretary of State was ordered to pay all costs incurred by the respondent in the Court of Appeal, with taxation if not agreed.
5. The court directed that the judgment be drawn to the Secretary of State’s attention. Advisers must take responsibility for identifying and checking appellate time limits, obtain advice where the effect of an order is uncertain, apply for extensions before deadlines expire, and lodge a full explanation of delay with the appellant’s notice.

• First-tier Tribunal (Immigration and Asylum Chamber): dismissed the respondent’s appeal against the refusal of asylum and grant of restricted leave.
• Upper Tribunal (Immigration and Asylum Chamber): on 6 December 2019 set aside the First-tier Tribunal’s determination, preserved its findings of fact and remade the decision. It allowed the respondent’s appeal in a determination issued on 14 October 2024. The Upper Tribunal refused the Secretary of State’s out-of-time application for permission to appeal and extension of time.
• Court of Appeal (Civil Division): granted an extension of time, permission to appeal, permission to adduce late evidence and permission to amend. It imposed a costs condition and ordered the Secretary of State to pay the respondent’s Court of Appeal costs.