Chowdhury, R (On the Application Of) v The First-tier Tribunal (Immigration And Asylum Chamber) & Anor

Factual and Procedural Background

This appeal concerns the time limit for appealing to the First-tier Tribunal (Immigration and Asylum Chamber) against certain decisions of the Secretary of State for the Home Department. The central question was whether the 14-day period to lodge an appeal notice begins when the Secretary of State sends a notice of decision that complies or substantially complies with the Immigration (Notices) Regulations 2003 ("the 2003 Regulations").

The respondent, referred to as the Appellant, sought to appeal a refusal dated 30 November 2016 of a residence card as an extended family member of an EU national under the Immigration (European Economic Area) Regulations 2006 ("the 2006 Regulations"). The notice sent did not comply with regulation 5(3)(a) of the 2003 Regulations as it incorrectly stated the Appellant had no right of appeal. At the time, the Upper Tribunal had held that no right of appeal existed for such refusals, but this was reversed by the Court of Appeal in November 2017. The Secretary of State did not issue a corrected notice informing the Appellant of his right to appeal.

On 13 November 2022, the Appellant lodged a notice of appeal. The First-tier Tribunal ruled the appeal was out of time and refused to extend the time limit. The Upper Tribunal granted judicial review, quashing the First-tier Tribunal’s decision and holding the time limit had not begun to run as the notice did not comply with the 2003 Regulations. The Secretary of State appealed the Upper Tribunal’s decision.

Legal Issues Presented

1. Whether the 14-day time limit for lodging an appeal to the First-tier Tribunal begins to run from the sending of a decision notice that complies or substantially complies with the 2003 Regulations.
2. Whether a defective notice that fails to inform the individual of their right of appeal triggers the start of the appeal time limit.
3. Whether the First-tier Tribunal erred in refusing to exercise its discretion to extend time for lodging the appeal.
4. Whether the Upper Tribunal erred in concluding that the appeal was brought in time despite the defective notice.

Arguments of the Parties

Appellant's Arguments

• The phrase "notice of decision" in Rule 19(2) of the Procedure Rules refers to a notice complying with the 2003 Regulations.
• The notice sent did not comply as it failed to inform the Appellant of his right of appeal, so the 14-day appeal period never began to run.
• The First-tier Tribunal should not consider the merits of the appeal when deciding timeliness.
• There were no adverse procedural consequences from the defective notice; the Appellant could waive non-compliance by lodging the appeal once aware of the right.

Secretary of State's Arguments

• The time for appealing begins from the date the notice of decision is sent, even if defective, unless non-compliance causes material adverse impact or remedying the defect causes adverse consequences.
• The 2003 Regulations do not expressly state that non-compliance invalidates the notice.
• In this case, no materially adverse consequences arose as the appeal would have failed on its merits.
• The First-tier Tribunal should have considered whether the notice was invalid in light of these factors and whether the time for appeal had begun to run.
• The Upper Tribunal erred in holding the appeal was in time without considering these issues.
• Relied on case law including R v Secretary of State, ex parte Jeyeanthan, OS (Russia), and CM (Jamaica) to support this approach.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the statutory and regulatory framework governing appeals against immigration decisions, focusing on the 2003 Regulations that require notices of decision to inform recipients of their right of appeal. The court emphasized that the time limit for lodging an appeal under Rule 19(2) of the Procedure Rules is calculated from the date a compliant notice of decision is sent.

The notice sent to the Appellant failed to advise him of his right of appeal, a fundamental requirement under regulation 5(3)(a) of the 2003 Regulations, rendering the notice invalid for the purposes of starting the appeal clock. The court rejected the Secretary of State’s argument that the time limit could begin despite the defective notice if no adverse consequences flowed or if the appeal was bound to fail.

The court distinguished the procedural question of when the time limit begins from the substantive merits of the appeal. It held that the First-tier Tribunal should not consider the merits when determining timeliness. The court also found no adverse procedural consequences in this case from treating the notice as invalid.

Precedents relied upon by the Secretary of State were examined and found inapposite or distinguishable, particularly CM (Jamaica), which concerned different procedural facts and did not address time limits for appeals. The Marepally case was also distinguished as not addressing the timing for appeals.

The court concluded that the time limit for appealing did not begin to run until a valid notice informing the Appellant of his right of appeal was served, which did not occur in this case. Therefore, the appeal lodged on 13 November 2022 was within time.

Holding and Implications

The court DISMISSED the Secretary of State’s appeal, upholding the Upper Tribunal’s decision that the Appellant’s appeal was lodged within time.

The direct effect is that the Appellant’s late appeal against the refusal of a residence card is considered timely due to the invalidity of the original notice. No new precedent was established beyond affirming that defective notices which fail to inform of the right of appeal do not start the time limit for lodging appeals. The decision underscores the strict compliance required with notice regulations to ensure fairness in appeal procedures.