Sikander Grocers Ltd v Secretary of State for the Home Department

Where a statutory appeal is subject to an inflexible time limit, the court may have a narrow discretion under Article 6 to prevent the statutory scheme from denying an effective right of appeal in exceptional circumstances.

The discretion requires a careful, individual assessment of the facts. It does not impose an additional universal test that the litigant must have done absolutely everything possible, or must be entirely blameless. Where the court itself thwarts a reasonable and timely attempt to file the appeal, refusing an extension may be disproportionate.

The Secretary of State imposed a civil penalty of £15,000 on Sikander Grocers Ltd under section 15 of the Immigration, Asylum and Nationality Act 2006. The company’s objection was rejected, and the statutory 28-day appeal period expired on 26 February 2024.

On that date the company’s solicitor delivered the appeal papers to Luton County Court and attempted to pay the fee. The court rejected a card payment, accepted a cheque made payable to “My HMCTS” as sufficient, and later returned the papers because the payee was incorrect. The corrected papers were issued on 1 March 2024. HHJ Murch dismissed the appeal as out of time. The central issue was whether the court had power to permit the appeal to proceed.

1. The appeal succeeded. The statutory scheme required the appeal to be brought within 28 days, and CPR Part 52 and PD 52D generally provided no power to extend a statutory time limit.
2. The statute did not itself prescribe the precise documents, fee or procedure by which an appeal was to be brought. The CPR supplied that mechanism. Ordinarily, the correct fee had to be tendered with the documents submitted to the court office. A cheque naming the wrong payee meant that the appeal had not technically been brought within time.
3. That conclusion did not end the matter. The authorities recognised a narrow Article 6 discretion in exceptional circumstances. The court had to determine whether strict operation of the time limit would deny access to the appeal process and, if so, whether relief was justified.
4. The discretion required an individual factual assessment. The litigant did not have to satisfy an additional requirement of procedural perfection or prove that every conceivable step had been taken. Nor was complete blamelessness an absolute condition.
5. On the facts, the solicitor had delivered the correct documents, served them by email and attempted to make payment within time. Court staff rejected the available card payment and wrongly indicated that the cheque was acceptable. The resulting delay was caused by the court, not by any failure by the appellant’s solicitors. It would therefore be wrong and disproportionate to prevent the appeal from proceeding.
6. The court set aside the conclusion that the appeal could not be entertained and held that the appeal might proceed. No other application was determined.

The judgment describes an appeal from orders of HHJ Murch dated 12 March 2024 and 15 May 2024, dismissing the statutory appeal and the application to set aside on the basis that it had been issued out of time. The High Court allowed the appeal and held that the statutory appeal could proceed.