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Changes to time limits for seeking permission to appeal to the Upper Tribunal

Written by Ben Amunwa, Law mostly, 21 May 2018

Lawyers should ensure that their clients are not caught out by quiet amendments to the First-tier Tribunal procedure rules, that make an already tight deadline for permission to appeal applications even tighter in immigration and asylum cases.

On 14 May 2018, the Tribunal Procedure Committee tweaked the time limit for applications to the First-tier Tribunal for permission to appeal to the Upper Tribunal in immigration and asylum matters. Time now runs from the date that the person seeking to appeal was sent the decision of the First-tier Tribunal (not when they received it).

The amendment to rule 33 of the 2014 First-tier Tribunal Procedure Rules was made by the Tribunal Procedure (Amendment) Rules 2018/511. I've put the old and the new text of rule 33 of the First-tier Tribunal Procedure Rules side-by-side for comparison:

Old text

New text

33.— Application for permission to appeal to the Upper Tribunal
...

(2) Subject to paragraph (3), an application under paragraph (1) must be provided to the Tribunal so that it is received no later than 14 days after the date on which the party making the application was provided with written reasons for the decision.

(3) Where an appellant is outside the United Kingdom, an application to the Tribunal under paragraph (1) must be provided to the Tribunal so that it is received no later than 28 days after the date on which the party making the application was provided with written reasons for the decision.

33.— Application for permission to appeal to the Upper Tribunal
...

(2) Subject to paragraph (3), an application under paragraph (1) must be [sent] to the Tribunal so that it is received no later than 14 days after the date on which the party making the application was [sent the] written reasons for the decision.

(3) Where an appellant is outside the United Kingdom, an application to the Tribunal under paragraph (1) must be [sent] to the Tribunal so that it is received no later than 28 days after the date on which the party making the application was [sent the] written reasons for the decision.

Although the difference is slight, it could make quite a difference.

Suppose that the notice of decision is delayed in the post. Under the amended rules, the time limit could have expired before a copy of the decision has physically reached a person or their legal advisers. The person would need to make an application for an extension of time and later on could face arguments over whether their leave to remain has expired during the period of delay.

While the Tribunal has in the past been somewhat flexible and extended time to appeal where there is a good reason for the delay, parties can never be guaranteed an extension and should avoid putting themselves at the mercy of Tribunal Judges.

This highlights the importance of keeping good postal records and ensuring prompt responses to correspondence (including, where necessary, timely applications for an extension of time).

The explanatory note to 2018/511 explains that the change is:

"to clarify that the time period for an application to be sent to the Tribunal is calculated by reference to the date on which the written reasons for the decision are sent to the party making the application."

As my colleague Ubah Dirie at 36 Civil points out:

"SI 2018/511 does not contain transitional provisions, so it is not clear how this applies to determinations which were sent out before 14 May 2018 but where the deadline would be after that date."

Whether or not this is a clarification or a substantial change is debatable. What is clear is that for all appeals where the decision is sent on or after 14 May 2018, time runs from the date the decision was sent, and not the date on which it was received.

With thanks to Ubah for alerting me to this change.

About the author: Ben Amunwa is a barrister at 36 Bedford Row chambers with a practice focused on immigration, education, employment and housing. He regularly represents clients in immigration and asylum appeals to the First–tier and Upper Tribunals and in judicial review challenges.

This post first appeared on Ben Amunwa’s Law, mostly blog and is reproduced here with permission and thanks.

Any views expressed are those of the author and do not necessarily represent the views of EIN