R (on the Application of Onowu) v First-Tier Tribunal
| Jurisdiction | UK Non-devolved |
| Judge | Mr C M G Ockelton,Martin,UTJ O'Connor,CMG Ockelton |
| Judgment Date | 31 March 2016 |
| Neutral Citation | [2016] UKUT 185 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 31 March 2016 |
[2016] UKUT 185 (IAC)
In the Upper Tribunal (Immigration and Asylum Chamber)
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
Mr C M G Ockelton, VICE PRESIDENT
UPPER TRIBUNAL JUDGE Martin
Mr A Gilbert, instructed by Wilsons LLP Solicitors appeared on behalf of the Applicant.
Mr Z Malik, instructed by Government Legal Department appeared on behalf of the Interested Party.
The Respondent was not represented
R (on the application of Onowu) v First-tier Tribunal (Immigration and Asylum Chamber) (extension of time for appealing: principles) IJR
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 R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1663.
This is an application for judicial review of a decision made by First-tier Tribunal Judge Cruthers, sent to the parties on 17 March 2015, extending time for the respondent to apply for permission to appeal to the Upper Tribunal against a decision of First-tier Tribunal Judge Canavan allowing the applicant's appeal, on human rights grounds, against the respondent's decision to remove him to Italy - permission having been granted by the Vice President on the 14 September 2015.
Judge Canavan's decision allowing the applicant's appeal was promulgated on 15 January 2015. The Secretary of State's application for permission to appeal against this decision was not lodged with the First-tier Tribunal until 25 February 2015, significantly beyond the 14-day timeframe permitted for doing so pursuant r.33 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (SI 2014 No. 2604) (“the 2014 FtT Rules”).
Recognising that this was so the Secretary of State applied in the following terms for an extension of time:
“1. The decision under challenge was dated 15 January 2015 and this application for appeal is out of time. The appellant accordingly seeks an extension of time for bringing her appeal. She contends that it is in the public interest to allow the appeal to be heard for the following reasons:
(i) the limited consideration given by the learned judge to the considerable case law and evidence relating to Italy Dublin II cases amounts to a clear error of law, set out below. It is in the interests of justice for this error to be corrected on appeal;
(ii) the case concerns complex issues of fact and law which are shortly to be heard in the Administrative Court in judicial review proceedings (CO/7110/2013 and other linked proceedings), in a substantive hearing listed for three days between 24 th and 26 th March 2015. It is in the interests of justice that Mr Onuwo's application under Article 3, which involves identical issues (and has indeed been cited in the Administrative Court proceedings), be determined consistently with the cases before the Administrative Court;
2. The appellant regrets the lateness of this application but the decision was not considered until it came to the Treasury Solicitor's attention after it was included within the extensive further evidence served by the claimants in the Administrative Court cases late on Friday 13 th February 2015, as the Treasury Solicitors do not usually have conduct of First-tier Tribunal proceedings. The appellant has acted promptly since observing that decision.”
In the decision under challenge, Judge Cruthers granted the Secretary of State permission to appeal to the Upper Tribunal, stating:
“1. By a decision promulgated on 14 January 2015, First-tier Tribunal Judge Canavan allowed this appeal. Having assessed the evidence, the judge concluded that: “the appellant's removal to Italy in consequence of the decision would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with his rights under Article 3 of the European Convention” (her paragraph 40).
2. The application for permission to appeal is out of time (by about 25 days). But having regard to the interests of justice, I have decided to admit this application.
3. To a degree, the grounds on which the respondent seeks permission to appeal might be seen as only a quarrel with the judge's assessment of the evidence before her. But overall, I think it is just arguable – as per the grounds – that the judge erred in her assessment – and in her application of relevant case law – such as EM (Eritrea) [2014] UKSC 12 and Tarakhel v Switzerland (Application No.29217/12 – 4 November 2014).
As suggested at paragraph 4 of the respondent's grounds, it may be sensible if this matter is now ‘stayed behind the substantive Administrative Court cases to be heard between 24 th and 26 th March 2015’.
There may also be relevance in the decided case of: R (on the application of Weldegaber v Secretary of State for the Home Department (Dublin Returns – Italy) IJR [2015] UKUT 00070 (IAC), circulated on 12 February 2015.”
The relevant provisions of the 2014 FtT Rules read as follows:
“Overriding objective and parties' obligation to cooperate with the Tribunal:
2.-(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly
(2) Dealing with a case fairly and justly includes –
(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties and of the Tribunal;
(b) avoiding unnecessary formality and seeking flexibility in the proceedings;
(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;
(d) using any special expertise of the Tribunal effectively; and
(e) avoiding delay, so far as compatible with proper consideration of the issues.
(3) The Tribunal must seek to give effect to the overriding objective when it -
(a) exercises any power under these Rules; or
(b) interprets any rule or practice direction….
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4.-(1) Subject to the provisions of the 2007 Act and any other enactment, the Tribunal may regulate its own procedure…
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(3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Tribunal may –
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(a) extend or shorten the time for complying with any rule, practice direction or direction;
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33.-(1) A party seeking permission to appeal to the Upper Tribunal must make a written application to the Tribunal for permission to appeal.
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(2) Subject to paragraph (3), an application under paragraph (1) must be provided to the Tribunal so that it is received no later than 14 days after the date on which the party making the application was provided with written reasons for the decision.
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34.-(1) …
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(2) If the Tribunal decides not to review the decision, or reviews the decision and decides to take no action in relation to the decision, or part of it, the Tribunal must consider whether to give permission to appeal in relation to the decision or that part of it.
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(3) The Tribunal must send a record of its decision to the parties as soon as practicable.
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(4) If the Tribunal refuses permission it must send with the record of its decision –
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(a) a statement with its reasons for such refusal; and
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(b) notification with a right to make an application to the Upper Tribunal for permission to appeal…”.
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It is initially necessary to identify the correct approach a Tribunal should take when faced with an application for an extension of time to apply for permission to appeal. We found it somewhat surprising that neither party's skeleton argument drew our attention to a trio of recent decisions from the Court of Appeal, which are of undoubted significance to the issue we are required to consider.
Both parties, in their respective written cases, took the aforementioned matter as having been settled by 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, the headnote to which reads:
“…If a notice of appeal is given out of time, the first task in deciding whether to extend time is to see whether there is an explanation (or series of explanations) that cover the delay. If there is, it and all other relevant factors, such as the strength of the grounds, the consequences of the decision, the length of the delay and any relevant conduct by the Respondent are to be taken into account in deciding whether “by reason of the special circumstances it would be unjust not to extend time”
Reference in BO to “by reason of the special circumstances it would be unjust not to extend time” is to a feature of the procedure rules then in force governing the AIT. We pause here briefly to observe that this procedural regime was replaced by the 2014 FtT Rules on 20 October 2014, in relation to appeals in the First-tier Tribunal. The Upper Tribunal (IAC) came into existence...
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