Arpitkumar Ashwinkumar Barot & Anor, R (on the application of) v The Secretary of State for the Home Department

Applications to extend time for judicial review or an appeal must be assessed rigorously by considering the seriousness and significance of the default, its explanation and all the circumstances. The merits usually have little weight. They matter at the final stage only where the grounds are plainly very strong or very weak without much investigation. A short delay, absence of specific prejudice and adverse consequences for the applicant do not, without more, justify an extension where the default is serious and unexplained. Under paragraph 9.4.1(c) of the Immigration Rules, serious harm may be societal. Conduct seeking sexual activity with a child may contribute to the widespread problem of child exploitation even where the intended encounter was with an undercover officer.

Mr and Mrs Barot, Indian nationals, challenged the refusal of the first appellant’s application for leave to remain as a graduate student. The refusal followed his conviction under section 14 of the Sexual Offences Act 2003 and relied on paragraph 9.4.1(c) of the Immigration Rules. Administrative review maintained the refusal.

The appellants filed their application for judicial review seven days late. On 31 January 2025, the Upper Tribunal (Immigration and Asylum Chamber) refused to extend time and refused permission to apply for judicial review. The appellants then filed their appellant’s notice three days late and sought an extension of time, permission to amend their grounds and permission to appeal. The central issues were whether time should be extended and whether the proposed grounds had a realistic prospect of success.

Disposition

The application to extend time for filing the appellant’s notice was refused. The application for permission to appeal therefore did not arise for determination. In any event, permission would have been refused because neither ground had a realistic prospect of success and there was no other compelling reason for an appeal to proceed.

1. Applications to extend time under CPR 3.1(2)(a) are not applications for relief from sanctions under CPR 3.9, but must be approached with the same rigour. The court considers the seriousness and significance of the default, the reason for it and all the circumstances. The same approach applies to the power under rule 5(3)(a) of the Tribunal Procedure (Upper Tribunal) Rules 2008. The approach was supported by R (Ammori) v Secretary of State for the Home Department [2025] EWCA Civ 1311, R (KA) v Secretary of State for the Home Department [2021] EWCA Civ 1040, R (Kigen) v Secretary of State for the Home Department [2015] EWCA Civ 1286 and R (AK) v Entry Clearance Officer (Islamabad) [2021] EWCA Civ 1038.
2. The appellant’s notice was filed outside the seven-day period in CPR 52.9(3)(a). The breach was serious and significant. There was no adequate explanation for the delay. The absence of particular prejudice to the respondent did not, by itself, justify an extension, especially where the consequences resulted from the appellants’ or their representatives’ unexplained failure to comply with a known time limit.
3. At the third stage of the Hysaj approach, the underlying merits usually have little bearing. They become significant only where the grounds are very strong or very weak without much investigation. The Upper Tribunal correctly applied that limited merits inquiry.
4. Serious harm under paragraph 9.4.1(c) of the Immigration Rules may include harm to society. R (Mahmood) v Upper Tribunal (Immigration and Asylum Chamber) and another [2020] EWCA Civ 717 recognised that some offences cause societal harm without direct harm to an individual. The Upper Tribunal was entitled to regard the challenge as arguable because the decision letter did not expressly address harm, but not particularly strong. Seeking sexual activity with a child could contribute to the widespread problem of child exploitation, despite the intended encounter being with an undercover police officer.

• Court of Appeal (Civil Division) — In [2026] EWCA Civ 218, refused the extension of time for filing the appellant’s notice. Permission to amend was granted. Permission to appeal did not arise and would have been refused in any event.
• Upper Tribunal (Immigration and Asylum Chamber) — On 31 January 2025, refused to extend time for the judicial review application and refused permission to apply for judicial review.