Strict Hysaj-Style Discipline for UT Judicial Review and CPR 52.9 Appeals: Merits Matter Only if “Very Strong/Very Weak”, and “Serious Harm” Includes Societal Harm in Child-Sex Facilitation Offences

1) Introduction

Barot & Anor, R (On the Application Of) v Secretary of State for the Home Department concerned two connected procedural defaults arising out of immigration judicial review litigation: (i) a late Upper Tribunal (“UT”) application for permission to apply for judicial review of a Home Office refusal of leave to remain, and (ii) a late Court of Appeal (“CA”) appellant’s notice seeking to challenge the UT’s refusal to extend time.

The appellants, Mr and Mrs Barot (Indian nationals), sought to challenge the respondent’s decision maintaining refusal of the first appellant’s application for leave to remain as a graduate student. The refusal turned on Part 9 of the Immigration Rules, specifically paragraph 9.4.1(c) (“has committed a criminal offence, or offences, which caused serious harm”), based on the first appellant’s conviction for arranging or facilitating sexual activity with a child (section 14 of the Sexual Offences Act 2003), for which he received 17 months’ imprisonment suspended for two years.

The key issues before the Court of Appeal were:

  • Whether time should be extended for filing the appellant’s notice under CPR 52.9(3)(a) (7-day limit where the UT decision was at a hearing).
  • Whether the UT had erred in refusing to extend time under Rule 5(3) and Rule 28 of the Tribunal Procedure (Upper Tribunal) Rules 2008 for the UT judicial review application (filed 7 days late).
  • How far the underlying merits (including whether a decoy/undercover operation can still amount to “serious harm”) could and should influence time-extension decisions.

2) Summary of the Judgment

The Court of Appeal (Singh LJ; Zacaroli LJ and Baker LJ agreeing) refused:

  • an extension of time to file the appellant’s notice (filed on day 10, out of time under CPR 52.9); and
  • permission to appeal in any event (holding neither ground had a realistic prospect of success).

The Court upheld the UT’s approach to late UT judicial review applications: applying the Hysaj three-stage discipline (seriousness/significance of breach; reasons; all the circumstances), and treating the merits as relevant only in the limited sense articulated in Hysaj—i.e. only where it can be seen “without much investigation” that the case is “very strong or very weak”.

On the merits “glance” undertaken by the UT, the Court held it was open to regard the claim as arguable but not particularly strong, because: (a) “serious harm” may be harm to society as a whole; and (b) arranging/facilitating child sexual activity sustains a market for exploitation and contributes to a widespread societal harm even if, in the instant facts, the “child” was an undercover officer.

3) Analysis

3.1 Precedents Cited

Denton v TH White Ltd [2014] EWCA Civ 906; [2014] 1 WLR 3926
Cited as part of the UT’s methodology when considering whether to extend time. Although Denton concerns relief from sanctions under CPR 3.9, it supplies the structured approach (seriousness; reasons; all circumstances) that is often treated as the template for procedural discretion. In this case, it provided context, but the CA emphasised Hysaj as the controlling authority for extensions of time (as distinct from CPR 3.9 relief).
R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633; [2015] 1 WLR 2472
The central authority. The CA reiterated two key propositions drawn from Hysaj:
  1. Applications for extensions of time are not technically CPR 3.9 applications, but are approached “in the same way, and with the same rigour”.
  2. The merits of the underlying claim generally have “little to do” with whether time should be extended; they matter only where the court can see without much investigation that the case is “very strong or very weak” (paragraph 46 of Hysaj, quoted and applied).
The CA treated the UT’s engagement with merits as properly constrained by Hysaj, and rejected the appellants’ complaint that the UT irrationally looked for a “strong” case.
R (Ammori) v Secretary of State for the Home Department [2025] EWCA Civ 1311
Used to reinforce the public interest in promptness in judicial review-type litigation and compliance with strict time limits (notably paragraph 98, as referenced), supporting the court’s conclusion that late filing—even if short—can be “serious and significant” in this context.
R (KA) v Secretary of State for the Home Department [2021] EWCA Civ 1040; [2021] 1 WLR 6018
Cited for the proposition that UT procedural rules form a “self-contained, free-standing procedural code”, but the approach to similar discretions can align with CPR analogues. This supported the CA’s conclusion that Hysaj-style rigor is apt when applying UT Rules 5(3) and 28 time-extension decisions.
R (Kigen) v Secretary of State for the Home Department [2015] EWCA Civ 1286; [2016] 1 WLR 723
Applied by analogy: Moore-Bick LJ’s reasoning that refusal to extend time which ends proceedings justifies the Hysaj three-stage approach. The CA deployed Kigen to bridge from CPR extension jurisprudence to UT judicial review procedural steps.
R (AK) v Entry Clearance Officer (Islamabad) [2021] EWCA Civ 1038
Cited for two practical points:
  • Even if Hysaj were not strictly applicable, the decision-maker must consider seriousness, reasons, and all circumstances (paragraphs 47–48 referenced).
  • The “absence of prejudice” to the respondent is usually insufficient, by itself, to justify an extension (paragraph 53 referenced).
This undercut the appellants’ reliance on a lack of prejudice and the asserted consequences to them as reasons to forgive lateness.
R (Mahmood) v Upper Tribunal (Immigration and Asylum Chamber) and another [2020] EWCA Civ 717; [2020] QB 1113
Substantively influential on the “harm” issue. The CA used Mahmood (paragraph 41 quoted) to confirm that “harm” can be societal and may be apparent from the nature of the offence itself, even if there is no immediately identifiable individual victim. This supported: (a) the Home Office’s guidance approach to “serious harm” and (b) the UT’s conclusion that the claim was not “particularly strong” on the merits.

3.2 Legal Reasoning

A. Extension of time to file the appellant’s notice (CPR 52.9)

The Court treated non-compliance with CPR 52.9(3)(a)—a 7-day time limit for permission to appeal against UT refusals of permission to apply for judicial review—as inherently weighty. It rejected any attempted “working day” gloss: the CPR provides a day-count and does not exclude weekends on the terms argued.

Applying the Hysaj-style rigor:

  • Seriousness/significance: filing on day 10 was “serious and significant” given the deliberately short limit in this specialist appellate context.
  • Reasons: there was no adequate explanation. Wanting an in-person conference with counsel, who was unavailable until after expiry, was not a good reason. The evidence was also silent on what steps were taken between the hearing and receipt of the sealed order.
  • All circumstances: lack of prejudice to the respondent did not carry the application; the public interest in promptness and procedural discipline did. The consequences for the appellants were viewed as flowing from unexplained non-compliance.

B. UT extension of time for the UT judicial review claim (Rule 28 / Rule 5(3)) and the role of merits

The Court endorsed the UT’s approach of using Hysaj to structure the time-extension discretion under the UT Rules. The Court emphasised that judicial review claims must be brought promptly, and in any event within the three-month outer limit—here missed by 7 days.

Crucially, the Court reaffirmed the constrained relevance of merits at the third stage: merits are not a forum for mini-trials on an extension application. Only where the merits are obviously “very strong or very weak” without much investigation should they materially affect the balancing exercise.

On the appellants’ core merits submission (no “serious harm” because the “child” was an undercover officer), the Court held:

  • “Serious harm” may include societal harm (drawing on Mahmood and consistent with the government guidance quoted).
  • The offence’s nature and sentence length (17 months) supported viewing it as serious and harmful to society.
  • Even though no child was directly harmed on these facts, demand for sex with children sustains a market for exploitation and “contribute[s] to a widespread problem” causing serious harm to society.

Accordingly, it was open to the UT to find the claim arguable (because the decision letter did not explicitly reason “harm” in the decoy scenario) but not “particularly strong”, and therefore not a merits-based reason to extend time.

3.3 Impact

  • Procedural discipline in UT-JR and onward appeals: the decision underscores that short delays in tightly timed immigration/judicial review pathways will often be treated as “serious and significant”, especially where the procedural scheme is designed for speed (UT JR promptness; CPR 52.9’s 7-day limit).
  • Merits arguments will be tightly policed on extension applications: parties should not expect extensive merits debate to rescue procedural default, unless the case is plainly very strong/very weak on a summary view.
  • “Serious harm” in Immigration Rules Part 9 (paragraph 9.4.1(c)): although decided in the procedural posture of extensions/permission, the Court’s reasoning supports a robust understanding that certain sexual offences—including facilitation/arrangement—are capable of constituting “serious harm” by reason of societal harm, even where the immediate interaction was with a decoy.
  • Practical litigation conduct: inability to consult counsel in time, absent more, is unlikely to be a “good reason”; solicitors must protect time limits (including by lodging protective notices) rather than waiting for conferences.

4) Complex Concepts Simplified

  • Administrative review: an internal Home Office reconsideration process; it does not stop strict judicial review time running unless rules provide otherwise.
  • Judicial review in the Upper Tribunal: a procedure to challenge certain immigration decisions on public law grounds; permission is required and the claim must be brought “promptly”.
  • Extension of time vs relief from sanctions: an “extension of time” application is not formally a CPR 3.9 “relief” application, but the courts apply similar strictness (per Hysaj).
  • The Hysaj three-stage approach: (1) assess seriousness/significance of lateness; (2) assess reasons; (3) assess all circumstances, with merits generally only relevant if obviously very strong/weak without detailed investigation.
  • Societal harm: harm that affects the community or society (e.g., sustaining markets in exploitation or undermining justice), even if no single identifiable victim can be shown on the facts.
  • Paragraph 9.4.1(c) “caused serious harm”: in context, can include harm to society generally; the Court’s reasoning treats the nature of the offence and sentencing outcome as relevant indicators.

5) Conclusion

The Court of Appeal’s decision is a firm reaffirmation of procedural rigour in immigration judicial review and related appeals: short, specialist time limits (UT JR promptness/three months; CPR 52.9’s 7 days) will be strictly enforced absent a good reason. The judgment also clarifies that invoking the merits to excuse lateness is a narrow gateway: only plainly very strong or very weak cases will materially affect the extension balance.

Substantively, while the appeal failed on procedural grounds, the Court’s discussion endorses the proposition that “serious harm” in paragraph 9.4.1(c) is not confined to direct harm to an individual victim; child-sex facilitation offences can constitute serious harm through their contribution to wider societal exploitation, even where the immediate counterparty is an undercover officer.