Time for Appeal Runs from the UT Determination Where the UT Refuses an Extension: Late Permission Only on Strict Costs Conditions

1) Introduction

Hakim-Hashemi v Secretary of State for the Home Department concerns an application by the Secretary of State for (i) an extension of time to file an appellant’s notice in the Court of Appeal, (ii) permission to appeal from a decision of the Upper Tribunal (Immigration and Asylum Chamber) (“UT”), and (iii) (raised later) an extension of time for serving evidence ordered by the Court. The respondent, Mr Hakim-Hashemi, is an Iranian national who had entered the UK on a spousal route, later claimed asylum, and whose asylum claim was refused on exclusion grounds under article 1F(b) of the Refugee Convention, while he was granted restricted leave on articles 2 and 3 ECHR grounds.

The immediate dispute before the Court of Appeal was not the substantive Refugee Convention point but whether the Secretary of State should be permitted to pursue a late appeal at all, given extensive procedural delay, non-compliance with orders, and an initial misunderstanding of applicable time limits. A further complicating factor was whether the proposed appeal was “academic” in light of legislative change, and whether the “second appeals test” could be met.

2) Summary of the Judgment

The Court held that the Secretary of State’s conduct disclosed serious and “extraordinary and woeful lapses” in compliance and case management, including late filing and late service of evidence contrary to an earlier order. Nonetheless, the Court was very narrowly persuaded to:

  • grant an extension of time for filing the appellant’s notice;
  • grant permission to appeal; and
  • grant an extension of time for serving the late evidence.

Crucially, permission to appeal (and the extension of time enabling it) was granted only on a strict condition: the Secretary of State must undertake to pay the respondent’s reasonable costs of resisting the appeal (standard basis, to be assessed if not agreed). The Court also ordered the Secretary of State to pay all costs incurred so far in relation to the appeal.

3) Analysis

A) Precedents Cited

Denton v White [2014] EWCA Civ 906; [2014] 1 WLR 3926

The judgment explicitly anchors its procedural criticism in Denton v White [2014] EWCA Civ 906; [2014] 1 WLR 3926, citing the Court of Appeal’s condemnation (at paragraph 34) of “a lax culture of non-compliance” and the need for it to stop. That precedent shapes both the evaluative lens and the tone of the Court’s response:

  • Seriousness of default: the Court treated the Secretary of State’s delays, failures to appreciate clear procedural consequences, and breach of an evidence deadline as grave, not technical.
  • Institutional accountability: the judgment reflects Denton’s insistence that parties (and especially public authorities with professional representation) must comply with rules and orders, rather than relying on the court to detect defects.
  • Sanctions via costs: consistent with Denton’s emphasis on discipline and efficient litigation, the Court imposed a stringent costs condition as the price of indulgence.

In short, Denton provided the normative framework: extensions are not routine; repeated non-compliance is unacceptable; and where relief is granted, robust terms (including costs) may be justified to protect the other party and the integrity of procedure.

B) Legal Reasoning

The Court’s reasoning proceeded along interconnected procedural and public-interest lines:

(i) The procedural default was serious and poorly explained

The Court examined a sequence of missed steps: a late application to the UT; the UT’s refusal of permission because it refused an extension of time; confusion over the correct Court of Appeal deadline; and an eventual appellant’s notice filed without a proper, timely extension application, apparently only corrected after the Civil Appeals Office identified the problem. The Court was particularly critical that:

  • the UT’s refusal (including refusal of the extension) should have been clear to competent lawyers reading the notice carefully;
  • the explanation (“misunderstood the notice”) was vague and did not identify who made the error or how it persisted; and
  • evidence ordered “in good time” was served after close of business the day before the hearing.

From the evidence, the Court inferred (i) that a senior presenting officer did not understand the applicable time limit and had not read the UT decision properly, and (ii) that counsel were not asked to advise on time limits and did not focus on them when settling grounds.

(ii) The Court identified a key time-limit consequence when the UT refuses an extension

A central practical point in the judgment is the Court’s treatment of the effect of the UT refusing an extension of time for seeking permission to appeal. Where the UT refuses such an extension, the applicable time for appealing to the Court of Appeal runs from the date of the UT determination that is the subject of the appeal (a 21-day period), not from the later date of the UT’s refusal notice (which would otherwise have engaged a 28-day period).

The Court treated the Secretary of State’s failure to grasp that consequence as a major factor against granting indulgence—because it is precisely the sort of basic procedural analysis expected of experienced public law litigators and their advisers.

(iii) Despite non-compliance, the appeal was arguable and not “academic”

The Court accepted that the arguability threshold was met and that (subject to a qualification) the “second appeals test” was also satisfied. A prior concern was that legislative change might render the point “historic,” but the Secretary of State’s evidence (albeit late) asserted that there were multiple cases “in the pipeline” where the issue would matter.

The respondent argued that the UT determination lacked precedential force because it was not a starred determination and could only be cited with permission, which reduced wider importance. The Court nonetheless accepted that, in practice, it would be “highly problematic” for the Secretary of State not to follow a reasoned UT decision on point, even if formally it was binding only in that case.

(iv) The balance was struck by conditioning relief on costs

Having weighed (a) the seriousness of the default and the prejudice to the respondent (who was entitled to think refugee status was secure once no in-time application was made), against (b) the public interest and the strength/importance of the legal arguments, the Court granted relief by a narrow margin.

But it did so only with a strong corrective measure: a condition requiring the Secretary of State to pay the respondent’s reasonable costs of resisting the appeal (standard basis, assessed if necessary), and an order to pay costs incurred so far. This served both compensatory and disciplinary purposes—mitigating prejudice while making clear that indulgence was not consequence-free.

C) Impact

The judgment’s likely impact is procedural and institutional rather than substantive (because it does not decide the underlying Refugee Convention issue). Its practical significance lies in four areas:

  • Clear warning on time-limit analysis: where the UT refuses an extension for seeking permission to appeal, parties must immediately treat the Court of Appeal deadline as running from the UT determination (not from the refusal notice).
  • Accountability in public authority litigation: the Court’s criticism—directed at presenting officers and instructed lawyers—signals that administrative complexity and internal miscommunication are not adequate explanations for missing jurisdictionally critical steps.
  • Costs as a condition of indulgence: the decision illustrates a robust approach: even where public interest justifies allowing a late appeal to proceed, the court may protect the respondent (and the system) through stringent costs consequences.
  • Operational relevance of UT determinations: even where a UT decision is not “starred” and not formally binding as precedent on other UT panels, the Court acknowledged the practical reality that a “trenchant” UT decision is difficult for the Secretary of State to ignore in subsequent cases without risking inconsistent decision-making and further litigation.

4) Complex Concepts Simplified

  • Extension of time: permission from the court to take a procedural step after a deadline has passed. It is discretionary and depends on the seriousness of the breach, the reason, and all the circumstances (including prejudice and the need for efficient litigation).
  • Permission to appeal: a filtering stage; an appeal generally proceeds only if the applicant shows an arguable error of law (and in some contexts meets an additional “second appeals” threshold).
  • Second appeals test: an additional threshold for certain appeals, typically requiring an important point of principle or practice, or some other compelling reason for the Court of Appeal to hear the case.
  • Academic appeal: an appeal that would not affect any live issue between the parties or any real-world outcomes. Courts may refuse to hear academic appeals unless there is a strong public interest in deciding the point.
  • Starred determination: a UT decision given enhanced status for citation/precedential purposes. A non-starred decision may have limited formal precedential force, though it can still carry persuasive and practical weight.
  • Article 1F(b) Refugee Convention: an exclusion clause that can bar refugee protection for those who have committed a serious non-political crime outside the country of refuge prior to admission as a refugee.

5) Conclusion

This judgment stands as a pointed procedural ruling: the Court of Appeal will not overlook serious non-compliance, especially by repeat institutional litigants, and will use costs conditions to counterbalance prejudice where an extension is nevertheless granted. It also highlights a critical timing consequence: when the UT refuses an extension for seeking permission to appeal, the Court of Appeal deadline runs from the UT determination itself. While the underlying immigration/refugee issue remains for the substantive appeal, the decision provides clear guidance on litigation discipline, responsibility for time-limit analysis, and the consequences of failing to comply with court orders.