R Rahman v First Tier Tribunal Upper Tribunal (Immigration Asylum Chamber)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 24 May 2013 |
| Neutral Citation | [2013] EWHC 1622 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/11670/2012 |
| Date | 24 May 2013 |
[2013] EWHC 1622 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Ouseley
CO/11670/2012
Mr I Palmer (instructed by Birnberg Peirce) appeared on behalf of the Claimant
The Defendants did not attend and were not represented
((As Approved by the Court))
This is the substantive hearing of an application for judicial review of first a decision of the First Tier Tribunal, granting an extension of time in which to challenge its decision allowing the claimant's appeal against the Secretary of State's decision refusing entry clearance. The second is a challenge to the decision of the Upper Tribunal that it had no jurisdiction to hear an appeal against the First Tier decision to grant an extension of time for applying for permission to appeal.
Permission was granted by Mr Owen QC sitting as a Deputy High Court Judge. Before I turn to any other matters — and without wishing to be unduly critical — the judge knew in granting permission on paper that no acknowledgment of service had been provided by defendant or interested party.
I have made it clear on a number of occasions, I repeat again: permission should not be granted in the absence of an acknowledgment of service before time for serving one has expired. Although I understand the reasons why it was done, I point out that the grant of permission in that case meant that an unarguable case against the Upper Tier was granted permission and the opportunity for the Secretary of State or First Tier Tribunal to take a delay point as a knock out blow was removed from them. If either of the parties had applied to set aside the grant of permission, I would have granted it.
As matters have moved on, I deal with the matter substantively. What happened was this: the First Tier Tribunal Judge, Blair-Gould, in a decision promulgated on 1 February 2012 allowed the claimant's appeal. The Secretary of State was not represented before that hearing in circumstances which, in the light of a subsequent concern, give rise to some surprise.
The refused application for entry clearance which was under appeal was a repeat of an earlier unsuccessful application for entry clearance. The claimant is a double murderer who is married to a British citizen, his first cousin. They have three children but they have spent no more than a few weeks together over the course of the years since marriage in 1998, following his release under a general amnesty in Bangladesh.
The judge allowed the appeal on the basis of Article 8. Understandably, the Secretary of State is concerned about the reasoning in that decision. I repeat the observation that the concern would have been better manifested had the Secretary of State turned up in the first place to argue the merits.
Time elapsed before applications for permission to appeal and an application for an extension of time to appeal were made. I shall return to those circumstances in a moment because they are key to this order. On 3 May 2012 the First Tier Tribunal Judge, Judge Froom, extended time. He took the view that the application was out of time by 4 weeks. He thought that there were special circumstances, because the respondent had explained that the determination was not received by her until it was forwarded by the entry clearance officer, a copy having been presented to him by the successful applicant. He thought there was a properly arguable point in the case and that there were important issues regarding the public interest. He, too, pointed out — as had the judge below — that it was regrettable that no...
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