R (on the application of Onowu) v FTT IJR [2016] UKUT 00185 (IAC)

R (on the application of Onowu) v First-tier Tribunal (Immigration and Asylum Chamber) (extension of time for appealing: principles) IJR [2016] UKUT 00185 (IAC)

The Judicial Review hearing was held on 22^nd January 2016 in relation to review a decision made by First-tier Tribunal Judge Cruthers, which was sent on 17^th March 2015 to the both parties allowing to extend time to apply for permission to appeal to the Upper Tribunal against a decision of First-tier Tribunal Judge Canavan.

The decision of Judge Canavan’s allowing the applicant’s appeal was made on 15^th January 2015, and the permitted to appeal against this decision within 14-day timeframe pursuant r.33 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chambers) Rule 2014. However, the Secretary of State applied for permission to appeal against the decision dated (15^th January 2015) on 25^th February 2015, which is significantly beyond 14 days permitted timeframe.

In assessing whether the permission to extend time for appeal should be granted, a Judge should consider an application in three stages as commended by Secretary of State for the Home Office Department v SS (Cong) & Others [2015] EWCA Civ 387 taking into account the learning from Mitchell, Denton and Hysaj:

1. The first stage concerns seriousness or significance of the failure in relation to compliance with the rules. In other words, whether the conducted breach was serious or significant should be assessed. If the breach is not serious, the permission must be allowed, thus unnecessary to go for the second stage. However, if the breach is serious or significant, the second and third stages play vital role here.
2. The second stage is to identify why the breach was happened, which concerns the reasoning of the failure. Strictly speaking, a reasoning for the default must be scrutinised. If a Judge finds a good reason for the breach, it is likely that relief will be granted. However, according to the point which was made in Denton, if both first and second stages find there is a significant or serious default and the reasoning is not good for the breach, the court should automatically refuse the permission. It is essential to consider the third stage.
3. The third stage involves an evaluation of all the circumstances of the case in order the court to make justice. According to the Civil Procedure Rule 3.9, two factors must be given particular weight, which 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 courts orders…‘

However, Judge Cruthers’ decision to allow time extension of the appeal was expressed in two inconsistent sentences, which are read as follow:

‘the application for permission to appeal is out of time (by about 25 days). But having regard to the interests of justice, I have decided to admit the application’

After analysing the above mentioned rules and precedents, the decision of Judge Cruthers’ is unexplained and unreasoned and cannot be determined whether required three stages process was undertaken. For this reason, Upper Tribunal Judge O’connor quashed the Judge’s decision to extend time for the SoS to apply for permission to appeal to the UT.

Both the First-tier Tribunal and the Upper Tribunal have to apply three stages in deciding whether to grant a permission to exercise discretion to extend time as commended by the Court of Appeal in Mitchel v News Group Newspapers Ltd [2013] EWCA Civ 1537; Denton v White [2014] EWCA Civ 906 and R (Hysaj v Secretary of State for the Home Department [2014] EWCA Civ 1663.