Hakim-Hashemi v Secretary of State for the Home Department

Factual and Procedural Background

The Appellant applies for permission to appeal from a determination of The Tribunal dated 14 October 2024 and for extensions of time to file the appellant's notice and to serve evidence. The Appellant also seeks permission to amend the appellant's notice by adding a further ground. The Court called the case for oral hearing and ordered the Appellant to file evidence explaining delays and whether other cases raising the same point were pending. Evidence was served late.

The Respondent is a national of Iran who entered the United Kingdom in January 2010 on a spousal visa, was later given leave to remain until 19 September 2014, was detained in the Czech Republic in 2012 and extradited to the United States where he was convicted in 2013 and sentenced to 27 months. On release he was returned to the United Kingdom, claimed asylum, and on 14 March 2019 the Appellant refused the asylum claim on the basis of exclusion under article 1F(b) but granted restricted leave because removal would breach articles 2 and 3 ECHR. The First-tier Tribunal dismissed the Respondent's appeal (determination 1). The Tribunal gave permission to appeal, set aside determination 1 and remade the decision, then allowed the Respondent's appeal (determination 2). The Appellant's applications to The Tribunal and to The Court were delayed and contested; The Tribunal refused an extension of time to apply for permission to appeal to The Court.

Legal Issues Presented

1. Whether to grant the Appellant an extension of time to file the appellant's notice in The Court.
2. Whether to grant permission to appeal to The Court from The Tribunal's determination of 14 October 2024.
3. Whether late-served evidence should be admitted and whether the Appellant may amend the appellant's notice by adding a further ground.
4. Whether the appeal is academic in light of intervening legislation and whether the second appeals test is met.

Arguments of the Parties

Appellant's Arguments

• Attorney Payne submitted that delays and procedural failures were regrettable but that the public interest and the merits of the appeal (including effects on other pending cases) favoured granting an extension of time and permission to appeal.
• Attorney Payne argued that, despite The Tribunal's decision not being a starred determination, an experienced panel's trenchant view on the point of law creates a practical obligation to follow it in pending cases.
• The Appellant was neutral (not formally opposing) about a costs condition proposed by the Respondent.

Respondent's Arguments

• Attorney Toal submitted that The Tribunal's determination has no binding precedent effect (not starred) and would require permission to be cited; this reduces its precedential importance.
• Attorney Toal criticised the Appellant's conduct as demonstrating a lax culture of non-compliance and invited the Court to impose a condition that the Appellant pay all costs of the appeal on the standard basis.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge [Last Name] identified two preliminary concerns when making the earlier order: (1) that the arguability threshold for the appeal was met and (subject to qualification) the second appeals test might be satisfied; and (2) there had been significant and unexplained delay in filing the appellant's notice, raising the risk that the appeal might be academic because of intervening legislation.

The Court examined the chronology of delays: late filing of the application to The Tribunal for permission to appeal to The Court, The Tribunal's clear refusal of an extension of time, misunderstanding by Appellant representatives of the applicable time limit, late instruction or failure to obtain counsel's advice on time limits, and late service of evidence contrary to express directions. The Court found the explanations provided were incomplete and that the conduct involved "extraordinary and woeful lapses" by the Appellant's officials and lawyers.

The Court weighed prejudice to the Respondent—who had believed his status secure following the lapse of in-time appeals—against the public interest in resolving the legal issues affecting other pending cases. The Court accepted that the legal issues were strongly arguable and that the determination could have practical effect in other matters despite its non-starred status.

Balancing the deficiencies in conduct against the strength of the legal arguments and the public interest, the Court concluded it was narrowly persuaded to grant the requested relief, subject to conditions addressing the Appellant's conduct and costs.

The Court also admonished those representing the Appellant to ensure senior presenting officers and instructed lawyers understand and act upon the implications of The Tribunal's orders, to seek counsel's advice where unclear, to apply for extensions before deadlines expire, and to provide full explanations of delay when lodging appellate notices.

Holding and Implications

HOLDING: The Court granted an extension of time to the Appellant and gave permission to appeal from The Tribunal's determination, subject to the condition that the Appellant undertake to pay the reasonable costs of the Respondent in resisting the appeal, to be assessed if not agreed. The Court also granted the Appellant's application for an extension of time to serve the ordered evidence.

Implications: The immediate effect is to permit the appeal to proceed and to require the Appellant to bear the Respondent's reasonable costs of resisting the appeal; the Court emphasised remedial directions to prevent recurrence of the procedural failures. The opinion does not purport to create a new general precedent; it recognises The Tribunal's determination is not a starred decision and may only be cited with permission, although the Court observed its practical significance for other pending cases.

Orders

• The Appellant must undertake to pay the reasonable costs of the Respondent resisting the appeal, assessed if not agreed (condition of grant of permission to appeal).
• The Appellant is ordered to pay all costs which counsel and solicitors for the Respondent have incurred so far in relation to the appeal to The Court; those costs are to be agreed or taxed if not agreed.