Summary of Opinion

Factual and Procedural Background

This is an appeal by the Appellant against the refusal of the Upper Tribunal (Immigration and Asylum Chamber) ("the UT") to admit the Appellant's application for judicial review of the Defendant's decision dated 3 January 2023 that the Appellant's application for leave to remain was invalid. The UT had found the Appellant's legal grounds arguable but refused to admit the application because, it concluded, the application had not been received by the UT within the 3‑month time limit and it declined to grant an extension of time.

The Appellant is a national of Bangladesh. He entered the UK with his wife (referred to below as Family Member A) and their son (Family Member B) on 3 September 2020 on a 2‑year multiple visit visa and stayed because of the Covid‑19 pandemic. On 30 June 2021 the Appellant sought an "exceptional assurance" under the Defendant's Coronavirus concessions, which was granted until 1 October 2021 and stated the Appellant would not be regarded as an overstayer during that period.

The Appellant's wife (Family Member A) applied on 7 May 2021 for leave to remain under the Overseas Business Representative (OBR) rules and was granted leave under that route on 16 August 2021 (with the son as dependent). The Appellant applied on 31 August 2021 for leave to remain as the spouse/dependent under the OBR rules. The Defendant refused that application on 29 March 2022 and maintained the refusal on 12 April 2022 on the ground that, because the Appellant's last permission had been as a visitor, he could not switch to the OBR dependant route.

The Appellant applied for administrative review and on 24 May 2022 the Defendant withdrew the 12 April 2022 decision, stating that the original decision-maker had applied the wrong rules and that the application would be reconsidered. On 3 January 2023, following reconsideration, the Defendant again treated the Appellant's application as invalid for the same validity reasons.

The Appellant's immigration advisers sent a pre-action letter on 9 February 2023 and the Defendant replied on 6 March 2023 explaining the Defendant's view on the applicability and timing of the Coronavirus concessions. The Appellant contended before the UT that the policy applicable on 31 August 2021 was not materially different from that on 7 May 2021 and that the point was arguable.

Procedurally, the Appellant says he posted a claim form for judicial review to the UT on 26 March 2023 (a Sunday) at the post office located at The Hospital (the "Hospital Post Office"). The UT had no record of receipt. The Appellant's solicitors wrote to the UT in April 2024 when no acknowledgment had been received. A fresh application for permission was submitted in April 2024 with an application for an extension of time. The UT dealt with the matter on paper initially and refused to admit the application; after that the Appellant renewed the application for an oral hearing which took place on 9 October 2024. The UT (a different constitution) rejected admission of the claim on 10 October 2024. The Appellant appealed to the Court of Appeal.

Legal Issues Presented

1. Whether the UT erred in refusing to admit the Appellant's application for judicial review because the application was received late and an extension of time was not granted.
2. Whether the UT was legally entitled to take judicial notice (or otherwise rely on the judges' experience) that post offices are not open on Sundays and, if it did, whether that was a material error of law or fact affecting the UT's credibility findings.
3. Whether fresh evidence regarding the opening hours of the Hospital Post Office and the provenance of the certificate of posting should be admitted on appeal.
4. Whether any error identified in the UT's reasoning was immaterial because fresh evidence showed the post office was closed on 26 March 2023.

Arguments of the Parties

Appellant's Arguments

• The UT committed a material error of law by taking judicial notice that post offices do not open on Sundays without evidence, relying upon principles set out in relevant precedents regarding judicial notice.
• The UT's reliance on that view materially undermined its assessment of the Appellant's credibility and the evidential value of the certificate of posting.
• Fresh evidence (internet screenshots and a letter from Person A asserting Sunday opening) showed the Hospital Post Office opened on Sundays and that the certificate and stamp were genuine; that evidence should be admitted (or at least considered) and would make the UT's error immaterial.
• The UT should have granted an extension of time given the arguability of the underlying legal challenge about the Defendant's interpretation of the Coronavirus concession policy.

Defendant's Arguments

• The UT did not take judicial notice that post offices do not open on Sundays; if it did, the error was not material to the outcome because the UT had other reasons for doubting the Appellant's explanation for delay and the authenticity/timing of the posting.
• The UT was entitled to take into account a range of concerns about delay, location of posting, inconsistent dates provided earlier, late production of the certificate of posting, and the Appellant's lengthy failure to follow up with the UT.
• Alternatively, fresh evidence submitted on appeal (including a witness statement from a Government lawyer and material suggesting the post office was closed at weekends in March 2023) supported the view that the Hospital Post Office was closed on 26 March 2023 and that the certificate of posting was not reliable; that evidence, if admitted, would make any judicial notice error immaterial.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Precedent A [2017] UKPC 15	Principles governing judicial notice: facts may be judicially noticed if notorious or capable of immediate accurate demonstration from readily accessible indisputable sources; burden on party seeking judicial notice.	The Court applied the Precedent A principle to conclude the UT was not entitled to take unconditional judicial notice that post offices do not open on Sundays without evidence and that the UT's unqualified statement on Sunday opening was not justified as judicial notice.
Precedent B [2004] QB 10	Principles concerning mistake of fact leading to unfairness in public law decision-making.	The Court referred to Precedent B in considering whether the UT's apparent factual finding (about Sunday opening) could amount to a mistake of fact giving rise to unfairness in the UT's handling of the Appellant's evidence.
Precedent D [2011] EWCA Civ 1534	Admissibility of fresh evidence on appeal: modern CPR framework and relationship to earlier Ladd v Marshall principles.	The Court relied on Precedent D to explain that CPR provisions (and the overriding objective) govern admission of fresh evidence on appeal, and that Ladd principles remain relevant considerations, not absolute bars.
Precedent C [1954] 1 WLR 1489	Traditional principles (Ladd v Marshall) for admitting fresh evidence on appeal.	The Court applied the Ladd principles as relevant matters to be considered within the modern CPR framework and concluded that the fresh evidence could with reasonable diligence have been obtained for the UT hearing and did not justify departure from Ladd principles in the circumstances.

Court's Reasoning and Analysis

The Court began by identifying the central procedural rule: permission to apply for judicial review in the UT must be sought promptly and a written application must be received by the UT within 3 months of the decision (rules under the 2008 Rules, notably rule 28 and rule 28A). If an application is provided late, rule 28(7) requires a request for an extension of time and the UT must not admit the application unless it extends time under its case management powers.

On the facts, the UT had found the Appellant's substantive challenge to the Defendant's policy interpretation to be arguable and would have granted permission if the application had been timely. The UT's decision to refuse admission turned on findings about delay and on its assessment of the credibility of the Appellant's evidence that he posted his claim on 26 March 2023.

A pivotal factual point before the UT was a certificate of posting dated 26 March 2023, which the Appellant produced and said was issued by the Hospital Post Office. The UT expressed the view — unqualified and absolute in its reasoning — that "in our experience post offices do not open on Sunday" and treated that belief as undermining the Appellant's account and the authenticity or reliability of the certificate. The Court of Appeal analysed whether the UT was entitled to rely upon that proposition as a matter of judicial notice or merely as the judges' own experience.

The Court held that if the UT were relying upon the personal experience of the judges that post offices do not open on Sundays, that was not evidence and could not provide a proper evidential basis. If the UT intended to rely upon judicial notice, the prerequisites identified in Precedent A had not been met: the matter was not shown to be notorious nor shown to be immediately and accurately demonstrable from indisputable sources before the UT. The Court emphasised that the UT's statement was absolute rather than probabilistic and formed an integral part of the UT's reasoning, affecting its assessment of the Appellant's credibility and the weight given to the certificate.

The Court found it troubling that after the Appellant gave oral evidence contradicting the UT's experience-based assertion, neither the respondent's counsel nor the UT put the implicit criticism squarely to the witness by way of fair challenge and further questioning. That procedural omission compounded the unfairness, as the UT's statement effectively cast doubt on the witness's reliability without proper adversarial testing.

The Defendant sought to cure any supposed judicial notice error by adducing fresh evidence on appeal (including an unchallenged witness statement from a Government lawyer and material suggesting weekend closure of the post office in March 2023). The Court considered the admissibility of fresh evidence under the modern civil procedure framework, noting the guidance in Precedent D and the continuing relevance of the Ladd principles (Precedent C) as part of the court's discretionary exercise under the CPR and the overriding objective.

Applying those principles, the Court concluded that none of the fresh evidence on appeal represented material that could not with reasonable diligence have been obtained for use at the UT hearing, and no exceptional circumstances justified departing from the usual approach. Furthermore, viewing the fresh evidence as a whole, the Court was not persuaded that it established that the Hospital Post Office was closed on 26 March 2023 so as to neutralise the UT's error of law.

For those reasons the Court refused the applications to adduce fresh evidence on appeal and proceeded to determine the legal error in the UT's admission decision itself. The Court concluded the UT had erred in law by relying on an unqualified assertion about Sunday opening as if it were judicial notice or otherwise proper evidence; that error materially affected the UT's assessment of credibility and formed an integral part of its reasoning for refusing the application.

Holding and Implications

Holding: The Court allowed the appeal. It dismissed the Defendant's Notice and ordered that the matter be remitted to the Upper Tribunal before a different constitution for redetermination of the Appellant's application for an extension of time and for permission to apply for judicial review.

Key outcome: The UT's decision refusing to admit the Appellant's application was set aside because the UT had taken into account an unqualified assertion about post‑office Sunday opening without evidence and that part of its reasoning materially affected its credibility findings and the decision on extension of time.

Implications:

• The immediate practical consequence is that the Appellant's application for permission to apply for judicial review will be reconsidered by the UT before a different panel, with the opportunity for proper evidential testing of the posting issue and consideration of any extension of time.
• The Court refused to admit the fresh evidence filed on appeal and found no exceptional circumstances to allow it to be admitted; the approach underscores the expectation that parties should, with reasonable diligence, obtain and adduce relevant evidence at the first available opportunity before the tribunal hearing the matter.
• The decision emphasises limits on taking judicial notice (or relying upon judges' own experience) for factual matters that are not notorious or demonstrable from indisputable sources and the necessity for fair adversarial procedure when a tribunal's view of such facts is relied upon to impugn a witness's credibility.
• No new general legal precedent was created beyond the application of established principles (as discussed in the cited authorities) to the facts of this case. The ruling is directed at correcting the UT's reasoning and ensuring a fresh and properly evidenced reconsideration by the UT.

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Document prepared from the provided opinion. All names and identifying details in the original have been anonymised consistently: "Appellant" for the individual who brought the appeal; "Defendant" for the Secretary of State / Home Department; "Family Member A/B" for the spouse and child; "The Hospital" and "The Hospital Post Office" for the location referenced; "Judge [Last Name]" and "Attorney [Last Name]" used for judicial officers and lawyers mentioned.