by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup of Asylum Aid
~ Newly Revised 2022 Edition ~
Notice of Appeal
Lodging an appeal using 'MyHMCTS'
Submitting an appeal online or by post or fax
Anonymity at case creation
Grounds of appeal
Issues in the appeal – reform procedure
Jurisdiction in human rights claims
Time limits and late appeals
Procedure for determining whether to extend time
Issues in considering whether to extend time
4.1 An appeal can be lodged against any decision listed in s.82 of the 2002 Act on the grounds listed in s.84. Since the entry into force of the 2014 Act, an appeal can be brought against the refusal of a protection claim on asylum, human rights or humanitarian protection grounds. An appeal against the refusal of a human rights claim can only be brought on human rights grounds.
4.2 By rule 19 of the 2014 Procedure Rules, the notice of appeal must be filed with the Tribunal. Since 22 June 2020, all protection and human rights claims must be filed using the reform online procedure by using MyHMCTS unless it is not 'reasonably practicable to do so': Presidential Practice Statement No 1 of 2021. This process is referred to as the 'reform procedure'. MyHMCTS is an online case management tool for solicitors and other legal professionals managed by HMCTS. It is necessary to register with MyHMCTS before using the service. Appeals submitted through MyHMCTS under the reform procedure do not have to follow the requirements set out in rule 19 of the Procedure Rules (see below). The appeal is filed via the platform by selecting the statutory ground of appeal and there is instant notification that it is lodged.
4.2A The Presidential Practice Statement identifies some types of case where it is accepted that it is not reasonably practicable to use MyHMCTS, and which may therefore be submitted using the online notice of appeal, or by post or fax. These include appeals brought by an appellant who is detained and unrepresented appellants: Presidential Practice Statement No 1 of 2021, para 4.
4.2B In other cases, if you seek to argue that it is not reasonably practicable to start an appeal by using MyHMCTS, you must at the same time state why it is not reasonably practicable to do so: Presidential Practice Statement No 1 of 2021, para 2. The Tribunal's User Guide explains that the Tribunal may require the appeal to be lodged in another way:
The Tribunal will consider any reasons and may give directions as to whether you can submit your appeal by other means considering the reasons given and the overriding objective as set out in the Tribunal Procedure Rules.
4.2C Since 22 June 2020, appeals which are allowed not to use MyHMCTS are still expected to be filed using the online appeal form (not part of the MyHMCTS platform). If this is not possible, a person may file an appeal by post of fax. The Tribunal accepts that this will generally apply to unrepresented appellants: User Guide.
4.3 For appeals which are allowed to be submitted other than through MyHMCTS (ie online or by post/fax) rule 19 of the Procedure Rules sets out the mandatory requirements with which the notice of appeal must comply. It provides that:
(4) The notice of appeal must:
(a) set out the grounds of appeal;
(b) be signed and dated by the appellant or their representative;
(c) if the notice of appeal is signed by the appellant's representative, the representative must certify in the notice of appeal that it has been completed in accordance with the appellant's instructions;
(d) state whether the appellant requires an interpreter at any hearing and if so for which language and dialect;
(e) state whether the appellant intends to attend any hearing;
(f) state whether the appellant will be represented at any hearing.
(5) The appellant must provide with the notice of appeal-
(a) the notice of decision against which the appellant is appealing or if it is not practicable to include the notice of decision, the reasons why it is not practicable;
(b) any statement of reasons for that decision;
(c) any documents in support of the appellant's case which have not been supplied to the respondent;
(d) an application for the Lord Chancellor to issue a certificate of fee satisfaction;
(e) any further information or documents required by an applicable practice direction.
Where the appeal is submitted online (other than through MyHMCTS), the supporting documents required by rule 19(5) must then be sent in hard copy to the Tribunal at:
First-tier Tribunal (Immigration and Asylum Chamber)
PO Box 6987
Instead of submitting the appeal online, it can also be submitted by post to the same address; by fax to: 0870 739 4053 or by email to: IAGFAPPS3@justice.gov.uk
4.3AA Where the appellant is in detention at the time the appeal is lodged, the appeal cannot be lodged online. Instead, the completed form IAFT-5(DIA) and any supporting documents should be sent by fax to 0870 761 7721 or by post to:
First-tier Tribunal (Immigration and Asylum Chamber)
Colnbrook By Pass
Middlesex, UB7 OHD
The form of notice approved for the purpose of (a) First-tier rule 19 (notice of appeal)... is the appropriate form as displayed on the Tribunal's website at the time when the notice is given, or that form with any variations that the circumstances may require.
4.3B Rule 19(6) provides that the Tribunal is responsible for sending the notice of appeal and any accompanying documents to the Home Office.
4.4 It is important to ensure that the notice of appeal is properly completed to avoid the Home Office alleging that no valid appeal has been made. If a defect in the notice is subsequently detected, whether the defect is fatal will depend on a consideration of the leading case of R (Jeyeanthan) v SSHD  EWCA Civ 3010. The Tribunal should strive to avoid dismissing an asylum/human rights appeal on technicalities. In HH (Sponsor as representative) Serbia  UKAIT 00063, the Tribunal considered whether a notice of appeal in which the sponsor had signed the form on behalf of the appellant was valid. It accepted that a sponsor could be a representative for these purposes, but the problem was that the sponsor had signed the part of the form where the appellant is required to sign, rather than the part for the representative. It observed:
14. It is perhaps worthy of note in this context that the following Rule, Rule 9, is headed "rejection of invalid notice of appeal". It contains provisions only for the rejection of a notice of appeal where there is no "relevant decision", that is to say no decision carrying a right of appeal to the Tribunal. In our view that is a clear hint that the draftsman of the Rules did not envisage failure to comply with the requirements of Rule 8 as causing a notice of appeal to be invalid. In any event, the general law requires only that there be "substantial" compliance with even mandatory procedural requirements: R v IAT ex parte Jeyanthan  1 WLR 354;  Imm AR 10, CA. That case in fact concerned a notice of appeal to the Immigration Appeal Tribunal which had not been properly completed by the Secretary of State. Mr Saunders cited Jarvis v Entry Clearance Officer Manila  Imm AR 102. That decision is perhaps of less direct relevance, because the relevant Rules at that time contained no express requirement of a declaration and signature. The decision there was that a notice of appeal was good if it contained sufficient information to identify the appellant. The requirements of a notice of appeal under the 2005 Rules are substantially more complex. We do not think it would be right now to say that a notice was good if it merely identified the appellant. But, given the terms of the 1984 Procedure Rules, which governed the decision in Jarvis, that decision is entirely consistent with Jeyanthan.
15. Whether there has been "substantial" compliance with Rule 8 is a matter to be assessed on the facts of the individual case. The law gives no encouragement to those who would seek to exclude an appellant for procedural reasons that are purely matters of form. In the present case, although the form itself was incorrectly completed, the notice of decision was included, and, as a result, there has never been any doubt about who the appellant was to be or what was the subject of the appeal. Nor has there been any doubt about the grounds of appeal, for full grounds accompanied the form. The appellant has not signed the form, but the appellant does not have to sign the form if she has a representative. The sponsor has not signed the declaration appropriate to a representative, but has signed the declaration appropriate to an appellant, that he believes the fact stated in the notice of appeal are true. There is ample ground here for finding that there has been substantial compliance with the requirements of Rule 8 and, if the matter were still contested by the Entry Clearance Officer, we should have so found.
4.4A With effect from 19 December 2011, fees are payable for appeals to the First-tier Tribunal. There is a higher fee for an oral hearing (£140) than where the appellant agrees for the appeal to be determined on the papers (£80), and the appeal form now requires the appellant to state whether she consents to the appeal being decided on the papers. Given the issues at stake and the central role that credibility normally plays in asylum and human rights appeals, you should always request an oral hearing. The following cases, likely to cover most asylum appeals and many human rights cases, are exempt from the fee:
• An appeal against a decision to revoke protection status (Article 5(1)(b) of the Fees Order);
• Where the appeal is against the refusal of a human rights claim and the Home Office waived the application fee on human rights grounds (Article 5(1A) of the Fees Order);
• Where the appellant is supported by the Home Office under s. 95 or s. 98 of the 1999 Act (Article 5(2) of the Fees Order): note that people supported under s. 4(2), or those provided with bail accommodation by the Home Office under Sch 10 of the Immigration Act 2016, are not exempted;
• Where the appellant is in receipt of LAA funding (Article 5(3) of the Fees Order) (note that in such cases, the appeal form requires a "legal aid reference number", which should be the legal aid supplier number of the representative);
• Where the appellant is a child "for whose benefit services are provided by a local authority" under section 17 of the Children Act 1989; a person with parental responsibility for such a child; or a child accommodated under s20 of the Children Act 1989 (or equivalent provisions in Wales, Scotland and Northern Ireland) (Article 5(4)).
4.4B In addition, payment of the fee can be deferred where the appeal is brought on asylum or humanitarian protection grounds (Article 6 of the Fees Order). There is no guidance presently available about how a deferral can be applied for, for how long payment can be deferred, or when the power will be exercised. In any case where a person is appealing on asylum or humanitarian protection grounds and does not fall within one of the exemptions above, but is unable to pay the fee at the time of lodging the appeal, you should make representations seeking a deferral.
4.4C Others who are unable to pay their fee due to "exceptional circumstances" may apply in writing for fee remission under Article 7 of the Fees Order. The First-tier Tribunal's Fees Guidance now contains the following guidance about obtaining an "exceptional circumstances" fee remission:
Where you believe that you are not realistically able to afford to pay your court or tribunal fee, or are facing other exceptional circumstances, you can ask the court or tribunal's delivery manager to consider reducing or waiving your fee. This is an important safety net which may apply where, for example, you are not eligible under the standard help with fees scheme, help with fees has been granted only in part, or if your fee is payable in proceedings where the help with fees scheme doesn't apply and you don't qualify for a remission under other rules.
The delivery manager will generally only grant your request if you are able to demonstrate that you are not realistically able to afford the fee in practice or that there are other circumstances which justify remission of the fee. The circumstances of applicants will be considered on a case by case basis.
In considering whether to reduce or waive your fee, the delivery manager will require evidence about your exceptional circumstances, including why you are not able to afford your fee, or why there are other circumstances which justify remission of the fee. You must provide this evidence alongside your application. The type of evidence that you should provide includes (where relevant): notices threatening legal action due to non-payment of bills or housing costs, details of your income, savings, expenses, or any other relevant information to support your request for an exceptional remission.
All evidence must be in English or accompanied by a translation into English and where evidence of your finances is presented in a currency other than sterling it must be accompanied by a conversion. Translations and conversions should be from a recognised source (this can include online translation/conversion services).
You won't automatically have your fee reduced or waived because of your status, for example if you're unemployed, a seasonal or part-time worker, student or prisoner. You will still be asked to provide evidence to support your application.
In considering an application for an exceptional fee remission we would expect you to demonstrate that you have taken all reasonable steps to exhaust alternative sources of funding. For example, where you have a sponsor supporting you in an immigration related matter we would expect to see evidence demonstrating that those parties are unable to assist you in paying your fee. In addition, if you have any form of legal expenses insurance we would expect to see evidence as to why that cover would not be able to fund your fee.
If the delivery manager does not grant your exceptional fee remission application then you can appeal this decision to the operational manager. The operational manager will then consider any evidence that you have submitted previously and any further information you submit with your appeal. Once the operational manager has made their final decision we will not be able to consider the matter any further.
There is no statutory appeal against a refusal to grant exceptional circumstances fee remission and the only remedy would be judicial review.
4.4D Fees must be paid by card (and not cash or cheque). If an appellant does not have access to a payment card such that the appeal is submitted without payment, the Tribunal will write to tell them how to pay the fee directly into the Tribunal's bank account. The Tribunal will not process the appeal further whilst payment is awaited.
4.4E Article 8(1) of the Fees Order provides that:
(1) The Lord Chancellor must issue a certificate of fee satisfaction if satisfied that—
(a) the appropriate fee payable under article 3 has been paid; .
(b) in view of an undertaking given by or on behalf of the appellant, payment will be promptly made by BACS or an international money transfer; .
(c) no fee is payable; .
(d) payment is to be deferred in accordance with article 6; or .
(e) the appellant has, at the time a fee would otherwise be payable under article 3, applied for the fee to be reduced or remitted in accordance with article 7.
Article 8(3) allows the Lord Chancellor to revoke a certificate of fee satisfaction. The power in the Fees Order is unfettered but presumably it will be exercised where a certificate has been granted on the basis that payment will be made later and is not made, or where an application for reduction or remission is refused. In practice, however, HMCTS will consider applications for reduction or remission before deciding whether to issue a certificate of fee satisfaction.
4.4F The consequences of failing to pay the fee or obtain an exemption, remission or deferral are drastic: Rule 22 of the Tribunal's Procedure Rules provides that it must not accept a notice of appeal where the Lord Chancellor has refused to issue a certificate of fee satisfaction. Rule 7 provides that if the certificate is revoked, the appeal will be automatically struck out without order of the Tribunal. The Tribunal has a discretion, on written application by the appellant in accordance with Rule 7(3) to reinstate an appeal which is struck out under rule 7, but only if the Lord Chancellor issues a new certificate of fee satisfaction (Rule 7(2)). Any such application must be made within 14 days of the date on which the appellant was sent notification of the striking out (where the appellant is in the UK) (Rule 7(3)).
4.4G The Joint Presidential Guidance Note No. 1 of 2019 says that a decision not to accept a notice of appeal for absence of jurisdiction under r. 22 of the FtT Rules is a preliminary or procedural decision for the purposes of the Appeals (Excluded Decisions) Order 2009 (para 23) (and therefore cannot be appealed to the Upper Tribunal). However, as the Tribunal held in Baihinga (r. 22; human rights appeal: requirements)  UKUT 00090 (IAC), the scope for issuing a notice under rule 22 is limited:
A rule 22 notice may be issued at the stage where the First-tier Tribunal scrutinises a notice of appeal as soon as practicable after it has been given. Where no rule 22 notice is issued at that stage and the matter proceeds to a hearing, the resulting decision of the First-tier Tribunal may be challenged on appeal to the Upper Tribunal, rather than by judicial review.
If, therefore, the Tribunal issues a rule 22 notice after a notice of appeal has been given and no hearing is listed, there will be no right of appeal to the Upper Tribunal from this decision. In any event, since the Tribunal has no discretion whether to accept a notice of appeal in such circumstances, the appropriate remedy will be a judicial review of the Lord Chancellor's refusal to issue a certificate of fee satisfaction (and any related decision, such as a refusal to grant a fee remission or to defer payment). The same will apply where an appeal is struck out under rule 7, since the rule expressly provides that the appeal is struck out automatically without any order of the Tribunal being made. It may be appropriate to name the First-tier Tribunal and/or the Home Office as interested parties.
4.4H Rule 9(1) permits the Tribunal to order the respondent to pay the appellant some or all of the fee for the appeal when the appeal is allowed. In addition, the Tribunal may refund the fee where the Lord Chancellor decides under Article 9 of the Fees Order that it should do so. This applies where (1) the fee for an oral hearing was paid but the appeal was determined on the papers or (2) "where a fee has been paid which the Lord Chancellor, if all the circumstances had been known, would have reduced or remitted under article 7, the fee or the amount by which the fee would have been reduced, as the case may be, shall be refunded". An application for a refund must normally be made within 6 months of the date on which the fee became payable (Article 9(2)), but the Lord Chancellor has discretion to consider an application made after more than 6 months if there is good reason for the application being made at that time (Article 9(3)). Given the way in which the 'exceptional circumstances' discretion to remit fees is exercised, it seems unlikely that there will be a case in which an appellant has managed to pay the fee at the time, but can subsequently show that she should not have been required to do so.
4.4I An application for anonymity may be made at the same time as lodging the appeal, using the separate form available on the Tribunal's website (see chapter 32 for more details on anonymity). The online form includes a link to the anonymity application. Presidential Guidance Note No. 2 of 2011 (Anonymity Directions in the FtTIAC) however indicates that all asylum appeals will be anonymised at 'case creation' (para 2). Presumably this means that such cases will be anonymised when the appeal is logged on the Tribunal's system. The Guidance Note does not, in this context, refer to humanitarian protection or human rights appeals which are not also asylum appeals. The Procedure Rules define an 'asylum claim' by reference to Nationality, Immigration and Asylum Act 2002, s. 113(1), which refers only to claims that removal would breach the Refugee Convention. In cases which are not anonymised by the Tribunal at the outset, the Guidance Note also makes clear that applications for anonymity may be made at any later stage (see chapter 32 for more detailed treatment of anonymity in asylum and human rights appeals).
4.5 Under the reform procedure, there is no requirement for grounds of appeal save for indicating the statutory ground(s) applicable to your case. Even in legacy cases (where MyHMCTS is not used), the practical benefits of filing very detailed grounds of appeal are in many cases limited. Conditions may change by the full hearing and an advocate may wish to pursue points at the hearing of your client's case that were not apparent when the appeal was lodged. It is better not to draft long but hasty grounds which advance arguments on which you later have second thoughts, or which are inconsistent with those subsequently advanced by your advocate at the hearing.
(a) that removal of the appellant from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention;
(b) that removal of the appellant from the United Kingdom would breach the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection;
(c) that removal of the appellant from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention)
In appeals against decision on human rights claims (where there was no protection claim), the only ground of appeal is that in (c) (s84(2)). In appeals against the revocation of protection status, the only grounds are that the decision breaches the UK's obligations under the Refugee Convention or to persons eligible for humanitarian protection (s84(3)): JA (human rights claim: serious harm) Nigeria  UKUT 00097 (IAC).
4.7 It is no longer possible to appeal on the grounds that a decision is not in accordance with the Immigration Rules or is otherwise not in accordance with the law. However, in an Article 8 case, the Tribunal will need to consider the provisions of the Immigration Rules and Home Office guidance in order to determine whether an interference in Article 8 rights is in accordance with the law and proportionate. In SF and others (Guidance, post–2014 Act) Albania  UKUT 00120 (IAC), the Upper Tribunal held that 'Even in the absence of a "not in accordance with the law" ground of appeal, the Tribunal ought to take the Secretary of State's guidance into account if it points clearly to a particular outcome in the instant case. Only in that way can consistency be obtained between those cases that do, and those cases that do not, come before the Tribunal.' Further, as the Court of Appeal held in TZ (Pakistan) v SSHD  EWCA Civ 1109 at :
… where a person satisfies the Rules, whether or not by reference to an article 8 informed requirement, then this will be positively determinative of that person's article 8 appeal, provided their case engages article 8(1), for the very reason that it would then be disproportionate for that person to be removed.
4.7E In appeals not subject to the reform procedure, the Tribunal will consider the notice of appeal (which includes the grounds of appeal) at the CMRH, if one is held. The AIT Guidance Note on CMRHs (one of the 'Guidance notes of the former AIT that are now relevant to the FTTIAC' and published on its website) states that:
21... It should be possible to identify on what reasons recognised by the Refugee Convention the appellant is relying and on which Articles of the Human Rights Convention. Any issues arising under the immigration rules should also be identified.
22. If the appellant seeks to vary the grounds of appeal, this should be raised at the CMR hearing. In terms of Rule 14, the permission of the Tribunal for variation is required. It may be that the grounds of appeal as lodged are vague and unspecific. In terms of Rule 45(4)(d) the Tribunal may direct a party to provide further details of his case, or any other information which appears to be necessary for the determination of the appeal.
4.7F Rule 19(7) governs the granting of permission to vary grounds of appeal. It provides no criteria for determining whether to grant permission to amend the grounds of appeal. The general sparsity of caselaw reflects the relaxed approach traditionally taken at first instance both by the Home Office and the Tribunal. However, note the guidance given by the Tribunal in PD (Grounds – implied variation – section 86(3)) Sri Lanka  UKAIT 00058:
58. [...] The issue as to whether an appeal was brought on a particular ground goes to the very core of the appeal. It defines the scope of the appeal and determines many important matters, such as the substantive issues, what evidence is relevant and the case-law applicable. Section 84 of the 2002 Act sets out the various grounds of appeal. Rule 14 of the Procedure Rules sets out the process by which an appellant may vary his grounds. An appellant must state his case, and the grounds upon which he challenges the decision. This means that an appellant who challenges a decision must state clearly the ground or grounds in section 84 upon which he brings that challenge. The grounds of appeal should be notified in the Notice of appeal or "Statement of Additional Grounds" or other document attached to the Notice of appeal, or be the subject of an application before an Immigration Judge under rule 14 to vary the grounds of appeal. If an application is made at the hearing, it should be made at the outset. If it is made after a hearing has commenced, care should be taken to ensure that the other party has an adequate opportunity to deal with any evidence which may already have been given and which is relevant to the new ground.
59. In the case of appellants who are not represented, there may be a case for saying that an Immigration Judge ought to consider the basis of the claim, the grounds of appeal and whether variation is an issue that should be raised before the hearing commences. I do not need to decide that point, because the Appellant in the instant appeal was represented before the Immigration Judge.
60. If an appellant is represented, his representative should make any application under rule 14 if the grounds need to be varied. If a formal application to vary the grounds of appeal is made, then an Immigration Judge should make a decision on that application before the hearing commences, or continues. If no formal application is made, then the Immigration Judge should decide the issues in the appeal by reference to the grounds upon which it has been brought and as set out in the Notice of appeal or other document accompanying the Notice of appeal which is said in the Notice of appeal to set out the grounds of appeal. Nothing I have said in this paragraph contradicts the principle in ex p Robinson
4.7G Note that the Guidance Note is not suggesting that the Tribunal can require an appellant to apply to vary her grounds of appeal to make them less 'vague and unspecific' but rather that the Tribunal can require the appellant to provide further details of her case (see chapter 9). Given the tick box approach to grounds of appeal in reform cases, this guidance is largely irrelevant to those cases.
4.8 There will be circumstances, however, where it is important to raise specific matters as early as possible, which may be in the grounds of appeal if not a reform case. This may apply where you are raising significant new factual matters or complaints about how your client was treated by the Home Office. If the flaw is particularly serious, consider also making a formal complaint to the Home Office. If the point touches on credibility, the HOPO may argue at the appeal that an adverse inference should be drawn from the failure to raise the point in the grounds. The alternative, if you are not yet decided whether to disclose the material, is to prepare a dated statement or note which can be produced to establish the date upon which your client supplied the material.
4.8A Most importantly, the Home Office must consent under s. 85(5) to the Tribunal considering any new 'ground' (meaning a 'ground of appeal' under s. 84) which has not previously been considered by the Home Office. The Home Office should be less likely to withhold its consent if the new ground is raised as early as reasonably possible (so that it has time to consider it) than if it is raised only at or shortly before the substantive hearing (see para 5.6A-C for further details). In legacy cases, this would mean including it in the notice of appeal, whereas in reform cases, where the Home Office is required to carry out a review, it can be included in the Appeal Skeleton Argument and evidence to be submitted to the Home Office.
4.11AA The Reform procedure does not require reasons by way of grounds of appeal; rather the MyHMCTS platform requires the selection of the applicable statutory grounds of appeal. For represented appellants, the reasons for appealing are required to be set out in the Appeal Skeleton Argument ('ASA'), which must be provided 28 days after receipt of the Home Office bundle, or 42 days after the Notice of Appeal, whichever is the later. The standard directions under the reform procedure require a schedule of issues and 'brief submissions on those issues which should state why the appellant disagrees with the respondent' s decision with sufficient detail to enable the reasons for the challenge to be understood': Annex 1 to Presidential Practice Statement No 1 of 2021. At the review stage, following receipt of the ASA and appellant's bundle, the Home Office will be expected to comment on the issues as identified by the appellant and provide any counter schedule. Any CMRH listed will also serve to identify the issues under appeal, following receipt of the ASA and Home Office review.
4.11AB Unrepresented appellants are not required to provide an ASA but not later than 28 days after the Home Office bundle is provided, or 42 days after the Notice of Appeal, whichever is the later, unrepresented appellant must provide an explanation of their case ('Appellant's Explanation of Case' or 'AEC') which 'should contain reasons why the appellant believes the decision giving rise to the appeal is wrong': Annex 3 to Presidential Practice Statement No 1 of 2021. The standard directions for unrepresented appellants state that '[u]pon receipt of the AEC a Tribunal Case Worker will consider, before the document is sent to the Respondent, whether there should be a Case Management Appointment to enable the appellant to identify the issues in the appeal': Annex 3 to Presidential Practice Statement No 1 of 2021.
4.11B As seen above, the bases upon which an appellant may appeal are limited, under the 2014 Act, to decisions on protection (i.e. asylum or humanitarian protection) claims and decisions to refuse human rights claims. Jurisdiction to bring an appeal in a non-protection case therefore depends on both human rights being engaged and a decision to refuse such a claim. There are certain applications within Appendix FM, such as applications for ILR following the breakdown of a relationship due to domestic violence or applications from bereaved partners which the Home Office refuses to treat as a human rights claim in its primary decision-making, thereby issuing decisions which fail to engage with any express or implied human rights arguments advanced, instead requiring a separate paid application to be made for leave outside the Rules. In MY (refusal of a human rights claim) Pakistan  UKUT 00089 (IAC), upheld in the Court of Appeal (MY (Pakistan) v Secretary of State for the Home Department  EWCA Civ 1500) it was held that the Tribunal could not accept jurisdiction where the Home Office had declined to consider a human rights claim, given that there was no decision to refuse a claim. The question of whether a human rights claim has been made, however, is not within the gift of the Home Office to decide (see, eg, Baihinga (r. 22; human rights appeal: requirements)  UKUT 00090 (IAC)). Whether the Home Office has decided to refuse a human rights claim is a fact sensitive question. As this is a question of jurisdiction, it is a question for the Tribunal and not for either of the parties. MY (Pakistan), however, finds that applications based on domestic violence are not inherently human rights claims and whilst a human rights claim may additionally be raised in such an application (such as, for example, the risk from family members in the country of origin), if the Home Office has refused to consider it, there is no right of appeal. If you consider that the Home Office has made a decision to refuse a human rights claim (in addition to the application under the Immigration Rules on domestic violence), but the decision letter does not indicate that the Home Office considers there is a right of appeal, you should lodge a notice of appeal and ask the Tribunal to determine whether it has jurisdiction. In such cases, if an appeal notice is not rejected as invalid under rule 22 before a hearing, you should be prepared to argue the question of jurisdiction as a preliminary issue prior to any substantive determination of the appeal. There will be a right of onward appeal from any decision on jurisdiction following a hearing in the First-tier: see Joint Presidential Guidance 2019 No 1: Permission to appeal to the UTIAC, paras 20 & 23. If the Tribunal declines jurisdiction without a hearing, your only remedy will be judicial review. Depending on the circumstances, including how quickly the Tribunal considers the issue of jurisdiction, it may in some cases be necessary to also apply for judicial review of the Home Office's decision. Any challenge to a refusal to grant ILR (rather than limited leave) must be brought by judicial review in any event. The Court of Appeal confirmed in R (Mujahid) v First Tier Tribunal  EWCA Civ 449 that where the Home Office decides not to grant ILR but granted limited leave to remain, it does not 'refuse a rights claim' within the meaning of s.82(1)(b) of the 2002 Act such that there is no right of appeal to the Tribunal.
4.11C In the context of an asylum claim, it is unlikely that the Home Office will dispute jurisdiction given that its policy is to make findings on human rights (typically Articles 2/3 and 8 ECHR) in the same decision as the asylum decision. Problems surrounding jurisdiction may arise, however, insofar as your client raises protection arguments (ie Article 3 ECHR) and has not made a claim for asylum. This might arise, for example, where she has applied for leave to remain under the domestic violence routes and in the same application cover letter raises a risk of an Article 3 violation if returned to her country of origin. The Home Office may seek to argue that it has no obligation to consider Article 3 since your client has not claimed asylum. The issue was addressed in JA (human rights claim: serious harm) Nigeria  UKUT 00097 (IAC). The Tribunal held that where a human rights claim is made in circumstances where the Home Office considers that a protection claim could also be made, the Home Office is required to draw this to the attention of the applicant but that there is no obligation on the applicant to make a protection claim. The Tribunal further held that the failure of an applicant to make a protection claim in circumstances where the Home Office has drawn this to her attention may, depending on the circumstances, be seen as a "refusal to subject oneself to the procedures that are inherent in the consideration of a claim to refugee or humanitarian protection status" and accordingly treated with "some scepticism, particularly if it is advanced only late in the day" (at ). If your client's account contains facts that are capable of constituting a claim for international protection, you should advise her of the potential consequences of failing to make such a claim and her witness statement should explain her reasons for not making a protection claim.
4.12 Rule 19(2) of the 2014 Procedure Rules states that:
(2) If the [appellant] is in the United Kingdom, the notice of appeal must be received not later than 14 days after they are sent the notice of the decision against which the appeal is brought.
The notice must be received within the time limit, not merely sent. However, notice of appeal is lodged in time if it is provided to the Tribunal before midnight on the last day of the 14 day time limit (rule 11(1)), and if the 14th day is not a working day, then it is provided in time if it is provided on the next working day (rule 11(2)). A 'working day' means any day other than a Saturday, Sunday, bank holiday or the period 25th -31st December (rule 1(4)).
4.12A Time for lodging the appeal is calculated in calendar days, not business days, and runs from when the decision appealed against is sent. Where the notice of decision is sent by post by the Home Office, it will be necessary to ascertain when the Home Office posted it, which may be quite different from the date on any covering letter. Experience shows that the Home Office has in practice been unable to ensure accurate recording of the date of receipt or sending of documents. Its inability to accurately record the date on which determinations were sent to appellants in asylum cases under rule 23 of the previous Procedure Rules caused a great deal of confusion (and litigation), and potential injustice. In NB and ZD (para. 59 discretion) Guinea  UKUT 302 (IAC), for example, the Upper Tribunal observed that:
63. It is not disputed that since 2005 the respondent has been unable to provide either a satisfactory explanation or a system which enables her to comply with paragraph 23, which we note was inserted into the Rules at her request, in the teeth of objections from consultees about precisely the type of problems which subsequently occurred. We consider that the repugnance factor of bringing within the paragraph 23(5)(a)(ii) service procedure determinations relating to claimants with no reason to abscond (because their First-tier Tribunal appeal was successful), coupled with the respondent's failure to notify the correct dates or control his internal postal system so as to comply, must be given significant weight.
64. We also note that the respondent did not apologise until the hearing of this second reconsideration, three and a half years later, and then by Counsel, and can provide no explanation of the error on in relation to the claimant's appeal. The respondent's non-compliance was systemic and her attempts to deal with it were designed to obfuscate rather than to solve the problem.
In response to concerns raised by ILPA, the Tribunal Procedures Committee has indicated its intention to monitor the operation of this Rule and the systems put in place by the Home Office for ensuring accurate recording of the date on which decisions are sent out. In the meantime, where possible you should protect the appellant's position by ensuring the appeal is lodged in accordance with the most conservative estimate of when the time limit expires, where possible. Where, as is the case particularly since the Covid-19 pandemic, decisions are served by electronic means, this problem has largely been resolved.
4.13 If the time limit appears to have expired, you should take steps to lodge a notice of appeal immediately. Rule 20(1) provides that:
(1) Where a notice of appeal is provided outside the time limit in rule 19, including any extension of time directed under rule 4(3)(a) (power to extend time), the notice of appeal must include an application for such an extension of time and the reason why the notice of appeal was not provided in time.
4.15 The Tribunal has power to extend time of its own motion. Rule 20(2) states that:
If, upon receipt of a notice of appeal, the notice appears to the Tribunal to have been provided outside the time limit but does not include an application for an extension of time, the Tribunal must (unless it extends time of its own initiative), notify the person in writing that it proposes to treat the notice of appeal as being out of time.
4.16 If you think that the notice of appeal may appear to be out of time but you contend that it is being lodged within 14 days of the decision being sent, you should address this with your notice of appeal in order to pre-empt a notice from the Tribunal that it proposes to treat the notice of appeal as being out of time.
4.16A Under the Senior President of Tribunals' practice direction on contingency arrangements in the Tribunal (Pilot Practice Direction: Contingency Arrangements in the First-tier Tribunal and the Upper Tribunal), in force (as amended) between 19 March 2020 – 18 September 2021, the Tribunal was required to take into account, insofar as compatible with the efficient administration of justice, the impact of the Covid-19 pandemic when considering applications for extension of time. If the delay in your client's case fell within the currency of the Senior President's Practice Direction, you should take instructions from her on whether any factors relating to the Covid-19 pandemic informed the delay. In any case, the impact of the pandemic may well be relevant even in cases where the delay extended beyond that period.
(3) Where the Tribunal gives notification under paragraph (2), the person may by written notice to the Tribunal contend that-
(a) the notice of appeal was given in time, or
(b) time for providing the notice of appeal should be extended,
and, if so, that person may provide the Tribunal with written evidence in support of that contention.
(4) The Tribunal must decide any issue as to whether a notice of appeal was given in time, or whether to extend the time for appealing, as a preliminary decision, and may do so without a hearing.
(5) Where the Tribunal makes a decision under this rule it must provide to the parties written notice of its decision, including its reasons.
4.18 The Tribunal may decide this issue without a hearing (rule 20(4)): it may therefore also direct a hearing if appropriate.
4.19 While rule 20(3) allows an appellant to submit written evidence when notified that the Tribunal considers the appeal to have been lodged outside the time limits, it would be wise to provide evidence in support of an application to extend time when you lodge the appeal if practicable, although you should not delay lodging the appeal to obtain that evidence.
4.20 The absence of any entitlement to a hearing is nonetheless serious on two grounds. The Tribunal will essentially be acting as primary decision maker upon the appellant's written evidence since the Rules do not envisage any response from the Home Office. It is a fundamental requirement of fairness that there should be 'a reasonable opportunity to deal with and to explain any matter which [is] to be relied on against' the appellant (R (Q and Others) v SSHD  EWCA Civ 364). Secondly, if any issue arises about the appellant's credibility, the Tribunal will have no opportunity to assess this in person.
4.21 The Tribunal's acceptance of an out of time allegation will terminate the appellant's asylum/human rights appeal. The Tribunal should exercise its power to decide this issue at a hearing whenever it has doubts about whether to extend time which could be resolved by hearing oral evidence or oral submissions. While the consistent jurisprudence of the Strasbourg Court is that the fair hearing guarantees of Article 6 ECHR do not apply to questions of entitlement to enter or remain (Maouia v France (App no. 39652/98)), procedural protections apply within the substantive Convention rights (see eg R (Kiarie) v SSHD  UKSC 42 which recognised that any appeal which raises Article 8 issues must be conducted in such a way as to allow the appellant to participate effectively) and are arguably also protected by common law procedural fairness.
4.22 The Tribunal emphasised in BO and Others (Extension of time for appealing) Nigeria  UKAIT 00035 that the Tribunal's 'first task' prior to considering whether to extend time 'must be to see whether the appeal was in fact in time'. Where you submit that the appeal is not out of time because the notice of decision was received late, you should invite the Home Office to produce evidence of how the claim was served. The Immigration (Notices) Regulations 2003 (reg 7(1)) state that a notice may be:
a) given by hand;
b) sent by fax;
c) sent by postal service in which delivery or receipt is recorded to:–
i) an address provided for correspondence by the person or his representative;
ii) where no address for correspondence has been provided by the person, the last-known or usual place of abode or place of business of the person or his representative;
(d) sent electronically;
(e) sent by document exchange to a document exchange number or address;
(f) sent by courier; or
(g) collected by the person who is the subject of the decision or their representative.
4.23 The Notices Regulations were amended after the current Procedure Rules entered into force so as to remove the provision for deemed service of notices sent in country, which deemed documents sent by post to have been received two working days later. As indicated above, where the appellant is in the United Kingdom, time for lodging the appeal now runs from the date on which the decision was 'sent' to the appellant, and is calculated in calendar days. This may cause prejudice to some appellants where a decision is sent by post and takes a long time to reach the appellant, or where it is impossible to ascertain when the Home Office sent the decision. In cases where there has been a long delay between the date of the decision and the date on which it was received by your client, there ought to be an evidential burden on the Home Office to produce evidence of the date of sending and/or receipt: there would otherwise be little utility in the requirement imposed by reg 7(1)(c) (which was not amended in 2014) to effect service by post by recorded delivery. In the absence of such evidence from the Home Office, your client's evidence as to when the decision was actually received should be the starting point for any decision as to whether the appeal has been lodged in time, and the Tribunal should be prepared to assume that it was posted two working days before your client received it, by reference to the previous deeming provisions. This problem has been largely resolved since the increased use of service by electronic means.
4.23A In OI (Notice of decision: time calculations) Nigeria  UKAIT 00042, the Tribunal noted that 'It is clear from that Regulation that service by an ordinary (unrecorded) postal system is not effective service under the Regulations' and held that:
15. The Notices Regulations are clearly made for the benefit of those who receive the notices, and as a result the Tribunal has regularly held that an applicant or appellant may waive a requirement of the Regulations by submitting a notice of appeal even if the Regulations have not been fully complied with. But an applicant is entitled to require compliance with the Regulations, and if a notice has not been served by one of the methods specified in Regulation 7(1), it has not been lawfully served at all, and in that case time has not yet begun to run against any intending appellant.
4.23B In BO  UKAIT 00035, the Tribunal gave guidance about the issues that are likely to arise upon an application to extend time. It pointed out that the explanation should cover the whole of the period of delay. It said that
"19. The requirement for evidence is important. In assessing the explanation for delay, the Immigration Judge will be making findings of fact. If he is not shown evidence that ought readily to have been available, or if (whether or not evidence is produced) he does not believe the explanation given on the appellant's behalf, he is entitled to say so and to decide that there has been no effective explanation for the delay... [I]n such a case it is very unlikely indeed that time should then be extended.
20. If, on the other hand, there is an effective explanation, whether it amounts to a good excuse or a bad one is merely one of the matters to be taken into account, with all other factors, in deciding whether "by reason of special circumstances it would be unjust not to" extend time."
4.23C The reference to whether 'by reason of special circumstances it would be unjust not to' extend time is a reference to the test for extending time laid down in the previous Procedure Rules. The 2014 Procedure Rules lay down no specific test for extending time. The power to extend time is one of the Tribunal's general case management powers in rule 4(3)(a), which must be exercised in accordance with the overriding objective in rule 2 to 'deal with cases fairly and justly'. The removal of the requirement for 'special circumstances' should make the Tribunal more ready to extend time where it would be fair or just to do so. In R (on the application of Onowu) v First-tier Tribunal (Immigration and Asylum Chamber) (extension of time for appealing: principles) IJR  UKUT 00185 (IAC), the Upper Tribunal emphasised this difference in the wording of the 2005 Rules and the 2014 Rules. It suggested that an application for extension of time for appealing (whether to the First-tier Tribunal, or from the First-tier to the Upper Tribunal) should be treated in the same way as an application for relief from sanctions in civil proceedings. Although it was concerned with a challenge to a decision to grant an extension of time for appealing from the First-tier Tribunal to the Upper Tribunal, it is clear from its decision that it considered the approach should be the same where an application for an extension of time is made under Rule 20. It applied the guidance given by the Court of Appeal in SS (Congo)  EWCA Civ 387, in which the Court summarised the principles to be drawn from recent cases in this way:
...a judge should address an application for relief from sanction in three stages, as follows:
i) The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules. The focus should be on whether the breach has been serious or significant. If a judge concludes that a breach is not serious or significant, then relief will usually be granted and it will usually be unnecessary to spend much time on the second or third stages; but if the judge decides that the breach is serious or significant, then the second and third stages assume greater importance.
ii) The second stage is to consider why the failure occurred, that is to say whether there is a good reason for it. It was stated in Mitchell (at para. ) that if there is a good reason for the default, the court will be likely to decide that relief should be granted. The important point made in Denton was that if there is a serious or significant breach and no good reason for the breach, this does not mean that the application for relief will automatically fail. It is necessary in every case to move to the third stage.
iii) The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application. The two factors specifically mentioned in CPR rule 3.9 are of particular importance and should be given particular weight. They are (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice directions and court orders. As stated in para.  of the judgment in Denton:
"Thus, the court must, in considering all the circumstances of the case so as to enable it to deal with the application justly, give particular weight to these two important factors. In doing so, it will take account of the seriousness and significance of the breach (which has been assessed at the first stage) and any explanation (which has been considered at the second stage). The more serious or significant the breach the less likely it is that relief will be granted unless there is good reason for it …."
94. The court in Hysaj added some points of particular relevance to the present context. At para.  of his judgment, Moore-Bick LJ (with whom the other members of the court agreed) said that it would be quite wrong to construct a special regime for applications for extensions of time in public law cases, but he accepted that "the importance of the issues to the public at large is a factor that the court can properly take into account when it comes at stage three of the decision-making process to evaluate all the circumstances of the case". At para.  he rejected the contention that the court could construct a special rule for public authorities, which "have a responsibility to adhere to the rules just as much as any other litigants". He added that the nature of the proceedings and the identification of the responsibility for delay are factors which it may be appropriate to take into account at the third stage.
95. Another point concerned the merits of the substantive appeal, as to which Moore-Bick LJ said this at para. :
"If applications for extensions of time are allowed to develop into disputes about the merits of the substantive appeal, they will occupy a great deal of time and lead to the parties' incurring substantial costs. In most cases the merits of the appeal will have little to do with whether it is appropriate to grant an extension of time. Only in those cases where the court can see without much investigation that the grounds of appeal are either very strong or very weak will the merits have a significant part to play when it comes to balancing the various factors that have to be considered at stage three of the process. In most cases the court should decline to embark on an investigation of the merits and firmly discourage argument directed to them ….."
4.23D In Onowu  UKUT 00185 (IAC), the Upper Tribunal added that:
14. The following further guidance can also be distilled from the judgment in Hysaj:
(i) There is no merit in constructing a special rule for public authorities; they have a responsibility to adhere to the court's rules even if their resources are 'stretched to breaking point' ;
(ii) A solicitor or public body having too much work will rarely be a good reason for failing to comply with the rules ;
(iii) Particular care needs to taken in appeals concerning claims for asylum and humanitarian protection to ensure that appeals are not frustrated by a failure by a party's legal representatives to comply with time limits. The nature of the proceedings and identification of responsibility for a failure are matters to be considered at the third stage of the process ;
(iv) The inability to pay for legal representation cannot be regarded as providing a good reason for delay ;
(v) In most cases the merits of the appeal will have little to do with whether it is appropriate to grant an extension of time. Only in those cases where the court can see without much investigation that the grounds of appeal are either very strong or very weak will the merits have a significant part to play when it comes to balancing the various factors that have to be considered at stage three of the process .
4.23E In TR v AIT  EWHC 2055 (Admin), HHJ Anthony Thornton QC endorsed the decision in BO and set out the following guidance for practitioners and for the Tribunal (which must, however, be read in the light of the guidance in Onowu above):
24. Practitioners. It is essential that practitioners are aware of, and closely follow, the BO (Nigeria) guidelines when preparing an extension of time application. It is important to stress that since, in this case, two separate firms of solicitors, but not the firm currently acting for the claimant, were obviously in complete ignorance of these guidelines. The guidelines emphasise that any failure or shortcoming of a legal practitioner that has contributed to delay in appealing must be considered. Thus, any practitioner involved in an extension of time application has a duty of candour to the AIT in providing a full explanation and disclosure of any shortcoming that that practitioner is aware of, including his or her own shortcomings. All practitioners have a similar duty of candour to the AIT in relation to claimants. They must therefore ensure that their client provides a full and honest explanation of any of his or her shortcomings that have contributed to the delay. Thus, any error, shortcoming or frailty of human nature that has caused or contributed to the failure to lodge a notice of appeal in time must be explained in the evidence that is lodged with the application. These requirements, given the constraints under which a practitioner is working, are onerous but they are in conformity with the guidelines set out in BO (Nigeria).
25. Good practice therefore requires, in most extension applications, that the explanation of all aspects of the delay in question should be set out in a witness statement from either the claimant or the practitioner, or if necessary from both. That explanation should address all aspects of the delay since any lack of candour will be inimical to the claimant's interests in attempting to obtain an extension. These duties do not override a claimant's legal privilege of confidentiality in relation to communications with his or her lawyer. However, they do require a client's legal adviser to advise a claimant on the desirability, in that claimant's interest, to waive privilege in so far as that would be helpful to support an extension of time application. This duty extends to providing the client with a full and candid explanation of any error, shortcoming or failure by the legal adviser or legal representative that has caused or contributed to the situation in which the notice of appeal has not been lodged in time and of the need for any shortcoming of the claimant or the representative to be fully disclosed to the AIT as part of the evidence supporting the extension of time application.
26. The Duty Judge. Extension of time applications are dealt with by one of the Duty Judges sitting in the AIT Registry in Loughborough. The Duty Judge is an Immigration Judge nominated to sit as a Duty Judge in rotation. Although I was not provided with statistics showing the number of extension of time applications that are dealt with in any particular period of time or the resources available to deal with them, I can take judicial notice of the fact that there are a limited number of Duty Judges available on each working day to deal with a large number of such applications. There is, therefore, considerable pressure on the Duty Judge when dealing with any application. These are dealt with on paper since an oral hearing is not permitted and the turn-around time is very short. Rule 10(6) provides that the Duty Judge may only consider the papers that are lodged, which are to be a statement of the reasons for failing to give the notice in time accompanied by any written evidence relied upon in support of those reasons and "any other relevant matters of fact within the knowledge of the Tribunal".
27. It is therefore essential that the Duty Judge is provided with all relevant evidence in a readily intelligible form and that he or she then follows an appropriate check list in deciding each application whilst reaching a structured decision. In practice, Duty Judges have considerable experience in following a check list and in reaching a structured decision and it is also obvious that the check list that they use closely follows or is derived from the guidelines set out in BO (Nigeria).
28. The Duty Judge may, but only in an exceptional and obvious case, allow an application with only the most limited amount of evidence or, if he or she spots that an extension is required that has not been applied for, with no evidence at all. ...
This guidance will need to be considered in light of the changes effected by the 2014 Procedure Rules including that the Tribunal may now decide whether to extend time at an oral hearing.
4.24 The most common cause of appeals being lodged out of time is error by representatives. The Tribunal's caselaw previously indicated that judges should extend time where the fault lay with the representative rather than the appellant: see e.g. Abaci (16605), Minta-Ampofo v SSHD (15024) and Mapuranga v SSHD (01/TH/03560). This needs to be considered in the light of Onowu but the guidance taken by the Upper Tribunal from Hysaj that failures by representatives should not be allowed to frustrate the appeal suggests that a similar approach will continue to be taken.
4.24A The Tribunal has indicated on several occasions that where previous representatives are alleged to be at fault, they should be notified of the allegation by the present representatives and invited to respond (see chapter 8) although it will take account of the short time available to prepare evidence to deal with the timeliness point. In the decision of FP (Iran) v SSHD  EWCA Civ 13 (para 45) on the vires of the previous rule 19, Sedley LJ drew attention to:
the decision of this court in R v IAT ex parte Mehta  Imm AR 38 (a student case), where Lord Denning MR, holding that a solicitor's mistake might amount to special circumstances for enlarging time, said:
"We never let a party suffer because his solicitors have made a mistake and are a day or two late in giving notice of appeal...........All the more so .......... where [the appellant] would have no remedy against her solicitor for any negligence. If she is out of time for appeal, she will be removed from this country, and it would be of no consolation to her to say that she has a remedy against her solicitor."
4.24B In TR  EWHC 2055 (Admin), the High Court accepted that where an instructed representative had failed to lodge an appeal, it should not be expected that the appellant would lodge the appeal of her own initiative, at least until she had instructed new representatives.
4.25 In the context of the anxious scrutiny that must apply to asylum/ human rights appeals, and the potentially disastrous consequences of removing someone whose appeal has not been considered on the merits, the Tribunal will usually be inclined to extend time in the absence of deliberate abuse. In TR  EWHC 2055 (Admin), the decision of the Duty Judge to refuse an extension of time was quashed in part because of his failure to take account of the likely consequences for the appellant in an asylum case, her vulnerability and the merits of her appeal.
where there is an explanation for the delay and other factors have been taken into account, the decision must contain enough information for a reader to be confident that the judgment was a proper response to the material available.
In TR  EWHC 2055 (Admin), the Judge said:
...In all cases where an extension of time is granted, the Duty Judge need only give the briefest of reasons why that decision was taken. If the decision is to refuse to extend time, the reasons need not be lengthy but they should be sufficient to show that the decision has been arrived at in a structured manner, has taken account of all relevant factors, has not taken into account any irrelevant factors, is in accordance with the law and, overall, allows the claimant to know why his or her application to extend time has failed. (para 28)
The same conclusion was reached by the Upper Tribunal in Onowu, holding that the common law also required reasons to be given which were sufficient to allow the parties to see that the Tribunal had adopted the correct approach.
4.26A In NA (Excluded decision; identifying judge) Afghanistan  UKUT 444 (IAC), the Upper Tribunal held that the failure of the Duty Judge to give his name vitiated the decision because justice required the parties to know the identity of the decision-maker.
4.26B Under the pre-2005 appeal regime, MM and others (Out of time appeals) Burundi *  UKIAT 00182 established that an appeal against a refusal to extend time could be brought to the IAT. Under s. 101 of the 2002 Act, there was a right of appeal against a 'determination', which was undefined in either the Act or the 2003 Rules. The IAT said that:
29. In the absence of the limiting effect of the former definition of "determination", there would appear to be every reason to treat a decision to refuse to extend time for lodging an appeal as a determination of it. It is a decision which concludes the appeal and finally disposes of it; it determines it. It is the decision on the appeal; there will be no more. ...
4.26C However, in BO Nigeria  UKAIT 00035 decided the opposite in relation to the system for reconsideration in the AIT (which operated between 2005 and February 2010);
We draw attention to Rule 10(6). The effect of requiring the decision to be taken "as a preliminary decision" is twofold. For the purposes of the Rules, the decision is not a "determination" as defined in Rule 2; and the procedure for reconsideration introduced by s103A ff of the 2002 Act is not, by s103A(7)(a), available in the case of a preliminary decision. Thus, although the decision has to be taken without a hearing and on limited material, it is, so far as the Tribunal is concerned, final and can be revisited only by way of Judicial Review.
4.26D In NA (Excluded decision; identifying judge) Afghanistan  UKUT 444 (IAC), the Upper Tribunal stated its view that the transfer of the AIT's functions into the unified tribunals system did not affect the position. A decision to refuse to extend time for appealing is an excluded decision against which no right of appeal lies to the Upper Tribunal. The Tribunal's view on this is confirmed in the Joint Presidential Guidance Note No.1 of 2019 (para 23). Notwithstanding that, it is undeniably the case that the decision that the appeal is out of time has the effect of bringing the appeal to an end. It is not clear why the same reasoning as used in MM*  UKIAT 00182 cannot be applied. It is moreover arguable that the differences between r. 10(6) of the previous Procedure Rules which were considered in NA and rule 20(4) of the 2014 Procedure Rules are material. Rule 20(4) does not require the Tribunal to determine the matter as a 'preliminary decision' but as a 'preliminary issue'; moreover, as discussed above, the decision may now be made following a hearing. Rule 21(2) (see below) also now refers to the making of a 'decision' rather than a 'preliminary decision' under rule 20. That change in wording must be assumed to be deliberate and appears to suggest that decisions under rule 20(4) may not properly be excluded decisions against which there is no right of appeal, perhaps particularly so when the Tribunal has decided the issue at a hearing.
4.26F In any event, rule 32 allows the Tribunal to 'set aside a decision which disposes of proceedings' and to re-make the decision, if it considers it in the interests of justice to do so and one of the conditions in rule 32(2) is met. The power to set aside and re-make a decision is clearly not limited to decisions which are appealable under s. 11 of the 2007 Act and since a decision under rule 20 clearly 'disposes of proceedings', it would seem that the rule 32 power is available. The conditions in rule 32(2) are that:
(a) a document relating to the proceedings was not provided to, or was not received at an appropriate time by, a party or a party's representative;
(b) a document relating to the proceedings was not provided to the Tribunal at an appropriate time;
(c) a party, or a party's representative, was not present at a hearing related to the proceedings; or
(d) there has been some other procedural irregularity in the proceedings.
These are likely to cover many of the situations in which you might want to challenge a refusal to extend time under rule 20, for example because you or your client did not receive notification under rule 20(2) that the Tribunal considered that the appeal was out of time, or because the Tribunal did not receive your response or your evidence, unfairly refused to allow you additional time to provide such evidence before deciding the issue against the appellant, or decided the issue without a hearing when fairness required it to exercise its power to hold a hearing (see para 4.21 above). Where the appellant is in the UK, an application for a decision to be set aside under rule 32(1) must be made within 14 days of the date on which the appellant was sent the notice of decision (rule 32(3)). Given the uncertainty over whether there is a right of appeal, it would be wise to combine a request under rule 32(1) with an application for permission to appeal to the Upper Tribunal. If the Tribunal refuses your application to set aside under rule 32(2) and/or decides that there is no right of appeal to the Upper Tribunal, your remedy will be an application to the Upper Tribunal for judicial review. The available grounds of challenge on judicial review will be the same as on an appeal to the Upper Tribunal, which is restricted to points of law.
4.26F Note that if the dispute is about whether or not the notice of appeal was in time rather than whether or not to extend time, the Tribunal has previously held that it can re-determine the point EA (Timeous appeal treated as late) Ghana  UKAIT 00036. If you wish to challenge a decision that the notice of appeal was lodged out of time, it appears that this may be done by making representations to the First-tier Tribunal. In EA, it indicated that:
6. If a member of the Tribunal is persuaded that a notice of appeal to the Tribunal which has been treated out of time was in fact clearly given in time, he should ignore the decision that it was out of time and give parties notice that despite the Tribunal's previous indication there is an appeal pending before it which will proceed to determination. That we do in this case.
Although EA  UKAIT 00036 was decided by the AIT under the previous appeals regime, there is no reason to believe it will not continue to apply to decisions made by the First-tier Tribunal.
4.26G Rule 21 of the Procedure Rules provides:
Special provision for imminent removal cases (late notice of appeal)
(1) This rule applies in any case to which rule 20 applies, where the respondent notifies the Tribunal that directions have been given for the removal of the person from the United Kingdom within 5 days of the date on which the notice of appeal was received.
(2) The Tribunal must, if reasonably practicable, make any decision under rule 20 before the date and time proposed for the removal.
(3) Rule 20 shall apply subject to the modifications that the Tribunal may -
(a) give notification under rule 20(2) orally, which may include giving it by telephone;
(b) direct a time for providing evidence under rule 20(3); and
(c) direct that evidence in support of a contention under rule 20(3) is to be given orally, which may include requiring the evidence to be given by telephone, and hold a hearing for the purpose of receiving such evidence.
4.27 Rule 10 of the Procedure Rules deals with representation in appeals. Rule 10(1) provides that an appellant may be represented by anyone not prohibited from doing so by s.84 of the 1999 Act. If you are unsure whether this applies to you, check your position immediately. You could be committing a criminal offence. Rule 10(2) provides that the fact that a party was represented by someone who was not authorised under s.84 does not of itself render void the proceedings or any step taken in them.
4.28 Rule 10(3-5) provides that:
(3) If a party appoints a representative, that party (or the representative if the representative is a qualified representative) must send or deliver to the Tribunal written notice of the representative's name and address, which may be done at a hearing.
(4) Anything permitted or required to be done by a party under these Rules, a practice direction or a direction may be done by the representative of that party, except signing a witness statement.
(5) A person who receives notice of the appointment of a representative—
(a) must provide to the representative any document which is required to be provided to the represented party, and need not provide that document to the represented party; and
(b) may assume that the representative is and remains authorised as such until they receive written notification that this is not so from the representative or the represented party.
(6) As from the date on which a person has notified the Tribunal that they are acting as the representative of an appellant and has given an address for service, if any document is provided to the appellant a copy must also at the same time be provided to the appellant's representative.
(4) If any document is provided to a person who has notified the Tribunal that they are acting as the representative of a party, it shall be deemed to have been provided to that party.
4.30 The potential dangers arising from these provisions are obvious. Impress upon your client the necessity of keeping in touch and providing up to date contact details. If you cease to act for any reason, you must notify the Tribunal and the Home Office immediately.
4.31 If there is lengthy preparation required, e.g. expert reports, particularly medico legal reports where an interview with your client is necessary, you should therefore be pursuing these steps now rather than waiting for the notice of hearing.
4.31A Under the reform procedure, there is even less reason to wait since a notice of hearing will be one of the final steps in the appeal process. You will have 42 days after the notice of appeal is provided (ie the lodging of the appeal), or 28 days after the provision of the Home Office bundle, whichever is later, to provide the evidence your client intends to rely upon and the Appeal Skeleton Argument. It is important, therefore, to begin the process of evidential preparation for the appeal as soon as practicable after you lodge it. If you seek to rely upon expert evidence (see chapters 21-26) it may be necessary to apply to the Tribunal to vary the timeframe in the standard directions, providing as much detail as possible as to the delay and the reasons for it. Given the intention of the respondent meaningful review stage is to allow the Home Office to consider all the evidence that will be before the Tribunal at the substantive hearing, with a view to narrowing the issues, there is little point providing the Home Office and the Tribunal with your client's incomplete case.