NA (Bangladesh) v Secretary of State for the Home Department

Factual and Procedural Background

The Appellant, a citizen of Bangladesh, appealed against automatic deportation on human rights grounds. The First-tier Tribunal (FTT) allowed the appeal, but refused permission to appeal on 18 September 2013. The Secretary of State for the Home Department filed an application for permission to appeal to the Upper Tribunal one day late, on 2 October 2013, whereas the deadline was 1 October 2013.

On 11 October 2013, the Upper Tribunal granted permission to appeal without addressing the late filing, as the Secretary of State had stated the appeal was timely. On 15 November 2013, after the Appellant pointed out the late filing, the Upper Tribunal admitted the appeal. On 14 April 2015, the Upper Tribunal allowed the Secretary of State’s appeal, finding the FTT's decision legally erroneous and dismissing the Appellant's appeal.

The Appellant sought to appeal, initially challenging the extension of time but not contending that the Upper Tribunal was precluded from extending time. Permission to appeal to this court was refused on 30 September 2015. Subsequently, the Appellant changed representation and focused on the argument that the Upper Tribunal lacked jurisdiction to extend time due to procedural rules.

Legal Issues Presented

1. Whether the Upper Tribunal was empowered to admit an out of time application for permission to appeal despite the application lacking a request for an extension of time and reasons as required by rule 21(6) of the Tribunal Procedure (Upper Tribunal) Rules 2008.
2. Whether the failure to include a request for extension of time and reasons in the application rendered the application invalid and incapable of being admitted.
3. Whether the Appellant waived the right to object to the late application by failing to raise the point earlier before the Upper Tribunal.

Arguments of the Parties

Appellant's Arguments

• The application for permission to appeal filed on 2 October 2013 was invalid because it did not include a request for an extension of time or reasons for the late filing, as required by rule 21(6)(b).
• The Upper Tribunal was therefore bound by the rule not to admit the application.
• The decision of the Upper Tribunal to admit the late application was contrary to the procedural rules and thus invalid.

Respondent's Arguments

• The rules do not explicitly prohibit the Upper Tribunal from admitting a late application that lacks a request for extension of time and reasons.
• The Upper Tribunal has a broad, unfettered discretion under rule 5(3)(a) to extend time.
• Strict enforcement of rule 21(6) as argued by the Appellant would lead to manifest injustice, particularly where the delay is minimal and where the appellant has an arguable case.
• The Appellant waived the right to object by not raising the issue at the appropriate time before the Upper Tribunal.
• The procedural irregularity does not render the application a nullity, and the Upper Tribunal may waive requirements or require remedial action under rule 7.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the relevant procedural rules, particularly rule 21(6) of the Tribunal Procedure (Upper Tribunal) Rules 2008, which requires a late application to include a request for an extension of time and reasons. The court found that the rules do not explicitly prohibit the Upper Tribunal from admitting a late application lacking such a request. The critical requirement is that the Upper Tribunal must extend time under its general discretionary power in rule 5(3)(a) before admitting a late application.

The court emphasized that a strict interpretation rendering the application a nullity for failure to include a request would be unjust, especially where the delay is minimal and could be excused. The court noted the provisions of rule 7, which allow the Upper Tribunal to waive procedural irregularities or require remedial steps, further undermining the argument that the application was invalid.

The court also considered that the Appellant waived the right to object to the procedural irregularity by not raising it before the Upper Tribunal or in earlier submissions. The possibility of amending the application or filing a separate extension request further weakened the Appellant’s position.

Accordingly, the court concluded that the Upper Tribunal acted within its discretion in extending time and admitting the late application.

Holding and Implications

The court declined to grant permission to appeal on the new point raised by the Appellant that the Upper Tribunal was precluded from extending time. The court held that the Upper Tribunal had the power to grant a one-day extension of time and that the appeal had no realistic prospect of success.

The direct effect is that the Upper Tribunal’s decision to admit the late application and to grant permission to appeal stands. No new legal precedent was established, and the decision reinforces the discretionary nature of time extensions in tribunal proceedings and the importance of justice over strict procedural formalism.