Personal Immigration

Extension of time for seeking permission to appeal to the Upper Tribunal

In Onowu, R (on the application of) v First-tier Tribunal (Immigration and Asylum Chamber) (extension of time for appealing: principles) (IJR)[2016] UKUT 185 (IAC) (31 March 2016) the Upper Tribunal (Immigration and Asylum Chamber) considered the correct approach a Tribunal should take when faced with an application for an extension of time to apply for permission to appeal.

The Upper Tribunal held that in considering whether to exercise discretion to extend time for seeking permission to appeal to the Upper Tribunal, both the First-tier Tribunal and the Upper Tribunal should apply the approach commended by the Court of Appeal in Mitchell v News Group Newspapers Ltd[2013] EWCA Civ 1537; Denton v White[2014] EWCA Civ 906 and, in the immigration context, R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1663 rather than the decision of a three judge Deputy Presidential panel of the Asylum and Immigration Tribunal in BO and Others (Extension of time for appealing) Nigeria[2006] UKAIT 00035.

At paragraph 93 of its decision in Secretary of State for the Home Department v SS (Congo) & Others[2015] EWCA Civ 387, the Court of Appeal drew together the learning from Mitchell, Denton and Hysaj, in these terms:

"…a Judge should address an application for relief from sanction in three stages, as follows:

i) The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules. The focus should be on whether the breach has been serious or significant. If a judge concludes that a breach is not serious or significant, then relief will usually be granted and it will usually be unnecessary to spend much time on the second or third stages; but if the judge decides that the breach is serious or significant, then the second and third stages assume greater importance.

ii) The second stage is to consider why the failure occurred, that is to say whether there is a good reason for it. It was stated in Mitchell (at para. [41]) that if there is a good reason for the default, the court will be likely to decide that relief should be granted. The important point made in Denton was that if there is a serious or significant breach and no good reason for the breach, this does not mean that the application for relief will automatically fail. It is necessary in every case to move to the third stage.

iii) The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application. The two factors specifically mentioned in CPR rule 3.9 are of particular importance and should be given particular weight. They are (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice directions and court orders…"

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