Anonymized Summary of Court of Appeal Opinion
Factual and Procedural Background
The Appellants are nationals of India. The First Appellant entered the United Kingdom in 2022 as a student; the Second Appellant's leave is dependent on the First Appellant. In January 2023 the First Appellant was convicted under section 14 of the Sexual Offences Act 2003 of arranging or facilitating sexual activity with a child. He was sentenced to 17 months' imprisonment suspended for two years and ordered to undertake rehabilitative activity; limited material concerning sentencing and pre‑sentence reports was provided. The First Appellant had responded to an online escort advertisement, arranged to pay for sexual activity with a person he believed to be a child, attended the agreed venue and was arrested by undercover police officers. Images on his phone indicated an interest in school‑age girls.
On 9 November 2023 the First Appellant applied for leave to remain as a graduate student. By decision dated 4 January 2024 the respondent refused that application relying on GR 2.1 and paragraph 9.4.1(c) of the Immigration Rules (an applicant must not fall for refusal under Part 9 Grounds of Refusal; paragraph 9.4.1(c) refers to criminal offences which "caused serious harm"). An administrative review was refused on 22 February 2024, maintaining the original refusal.
The Appellants applied for permission to apply for judicial review on 29 May 2024 (outside the three‑month period). The Upper Tribunal (Immigration and Asylum Chamber) refused to extend time and refused permission at an oral hearing on 31 January 2025. An appeal to the Court of Appeal required an appellant's notice within seven days of that oral hearing (CPR 52.9(3)(a)); the appellant's notice was filed on 10 February 2025 (out of time). The Appellants applied for an extension of time to file the appellant's notice and for permission to amend the grounds of appeal. By order dated 17 July 2025 Judge [Warby] directed that those applications and the application for permission to appeal be heard.
Legal Issues Presented
- Whether the Court should extend time to file the appellant's notice under CPR 52.9(3)(a) given a three‑day delay from the seven‑day limit.
- Whether permission should be granted to amend the grounds of appeal.
- Whether the Upper Tribunal acted irrationally or wrongly in refusing to extend time and in refusing permission to apply for judicial review by concluding the Appellants' grounds were arguable but not "particularly strong"—specifically whether the First Appellant's offending fell within paragraph 9.4.1(c) as having "caused serious harm" (including harm to society) and whether the UT improperly relied on the perceived strength of the merits when deciding extension of time.
Arguments of the Parties
Appellants' Arguments
- The short period of delay (three days beyond the seven‑day limit) and absence of prejudice to the respondent justified extending time for the appellant's notice.
- The underlying judicial review claim was at least arguable and should have been permitted; in particular, the First Appellant did not cause harm to an actual child because the contact was with an undercover officer, so paragraph 9.4.1(c) did not properly apply—therefore the merits weighed in favour of extending time.
Respondent's Arguments
- The delay was a serious and significant breach of a short, strict time limit; no adequate explanation was provided and the Appellants' representatives should have acted sooner.
- Procedural compliance and promptness are in the public interest; granting an extension would undermine those interests and consume court resources.
- The Upper Tribunal was entitled to consider whether the merits were "particularly strong"; the nature of the offence and the sentence supported the view that it was harmful to society and therefore within paragraph 9.4.1(c). The respondent relied on existing guidance and appellate authority (including the decision cited as R (Mahmood) ...) to show that societal harm can be inferred from the nature of the offence.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Appellant v Company A [2014] EWCA Civ 906; [2014] 1 WLR 3926 (Denton) |
Procedural principles regarding extensions of time / relief from sanctions and the rigour to be applied to breaches of procedural time limits. |
Referenced by the Upper Tribunal and Court of Appeal as part of the principles to consider when deciding whether to extend time; supported the view that the seven‑day limit is strict and breaches are significant. |
| R (Appellant) v Secretary of State for the Home Department [2014] EWCA Civ 1633; [2015] 1 WLR 2472 (Hysaj) |
The three‑stage approach to extension of time (seriousness of failure; reasons for failure; all the circumstances), and limited role of merits except where grounds are manifestly very strong or very weak. |
The Court applied Hysaj's three‑stage approach and its guidance that the merits are normally of limited relevance unless very strong or very weak. |
| R (Appellant) v Upper Tribunal (Immigration and Asylum Chamber) and another [2020] EWCA Civ 717; [2020] QB 1113 (Mahmood) |
Recognition that certain offences may cause societal harm even without an identified individual victim; examples and approach to assessing "serious harm". |
Used to support the proposition that arranging sexual activity with a child can contribute to a widespread societal problem and therefore qualify as having caused serious harm. |
| R (Ammori) v Secretary of State for the Home Department [2025] EWCA Civ 1311 |
The Court's approach to applications to extend time and the factors to be considered (seriousness, reasons, and all circumstances). |
Cited for the proposition that the Court will have regard to those factors with rigour when considering extensions of time. |
| R (KA) v Secretary of State for the Home Department [2021] EWCA Civ 1040; [2021] 1 WLR 6018 |
Similarity of approach under the Rules and CPR when considering extensions of time; application of Hysaj principles to tribunal procedure. |
Referenced to show that the Rules are a self‑contained code but that analogous CPR principles may inform the exercise of discretion. |
| R (Appellant) v Secretary of State for the Home Department [2015] EWCA Civ 1286; [2016] 1 WLR 723 (Kigen) |
Application of Hysaj's three‑stage approach in context of reconsideration of tribunal decisions; analogy to refusals to extend time. |
Used to support that a refusal to extend time bringing proceedings to an end requires the three‑stage Hysaj approach. |
| R (AK) v Entry Clearance Officer (Islamabad) [2021] EWCA Civ 1038 |
Consideration of relevant circumstances and the need to consider seriousness, reasons and all the circumstances when extending time for judicial review applications. |
Applied to show similar considerations apply when extending time under CPR 3.1(2)(a) and analogous tribunal rules. |
Court's Reasoning and Analysis
The Court approached the applications under the established three‑stage test derived from Hysaj (seriousness of the breach; reasons for the breach; all relevant circumstances) and related authorities. It treated the application to extend time to file the appellant's notice and the application for permission to appeal together.
First, the Court found the failure to file the appellant's notice within the seven‑day period to be a serious and significant breach. The short, strict time limit in CPR 52.9(3)(a) meant prompt compliance was required; the appellant's notice was filed three days late. The Appellants offered no adequate explanation for the delay: the witness evidence did not explain contact between representatives and the Appellants between the hearing on 31 January 2025 and 4 February 2025, and the unavailability of counsel until 10 February 2025 did not justify the failure.
Second, the Court considered the reasons offered and found none sufficient to excuse the breach. The public interest in promptness and compliance with short time limits weighed strongly against the Appellants. The absence of particular prejudice to the respondent was not determinative.
Third, on the merits, the Court applied Hysaj's guidance that the underlying merits seldom determine whether to extend time unless the court can see without much investigation that the grounds are very strong or very weak. The Upper Tribunal had described the Appellants' grounds as arguable but not particularly strong. The Court accepted the UT's reasoning: although the decision letter did not expressly address what harm was caused, established guidance and appellate authority recognise that harm may be to society generally. Given the nature of the offence (arranging sexual activity with a child), the communications, agreement to pay, attendance at the venue and the custodial sentence (albeit suspended), the Court found it open to the UT to conclude the offence was, on its face, harmful to society and to regard the grounds as insufficiently strong to justify extending time.
The Court concluded there was no realistic prospect of success on either ground of appeal: ground 1 (that the offence could not rationally fall within paragraph 9.4.1(c) because no actual child was harmed) lacked realistic prospects given the authorities and guidance; ground 2 (that the UT acted irrationally by considering whether an arguable case was also a strong one) misunderstood that Hysaj requires consideration of the merits to the limited extent done by the UT.
Holding and Implications
The Court refused to extend time for filing the appellant's notice and refused permission to appeal.
Direct implications: the appellant's notice remains out of time, the appeal does not proceed, and the Upper Tribunal's refusal to extend time and to refuse permission to apply for judicial review stands. The Court determined there was no realistic prospect of success on the proposed grounds and no other compelling reason to allow an appeal. The decision does not purport to create new legal precedent beyond applying existing authorities (Hysaj and related cases) to the facts before the Court.
Note: All personal names and identifying details in this summary have been anonymized in accordance with the instructions supplied. Institutional and statutory references are retained only as they appear in the provided opinion.