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Lodging the appeal

Chapter number: 
4
Section: 
Procedure
Last updated: 
30 November 2014
Best Practice Guide to Asylum and Human Rights Appeals
by Mark Henderson & Alison Pickup

The Notice of Appeal

4.1 An appeal can be lodged against any decision listed in s.82 of the 2002 Act on any of the grounds listed in s.84 (which include asylum and human rights grounds). The rights of appeal available under the 2002 Act in asylum and human rights cases before and after the amendments made by the 2014 Act are discussed in more detail in the Preface.

4.2 By rule 19, the notice of appeal must be filed with the Tribunal. (Previous provision for a person who is detained under the Immigration Acts to serve it on the person having custody of her has not been replicated in the 2014 Procedure Rules). Note that appeals can now be lodged online, and helpful guidance on completing the online form and paying the fee can be found in the Tribunal's Fees Guidance on its website.

4.3 It is no longer mandatory for notice of appeal to be given on an approved form, but rule 19 sets out the mandatory requirements with which it 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, 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
Leicester
United Kingdom
LE1 6ZX

4.3A Although rule 19 no longer requires notice of appeal on an approved form, the Senior President's Practice Directions provide that

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 [1999] EWCA Civ 3010. The Tribunal should strive to avoid dismissing an asylum/human rights appeal on technicalities. In HH (Sponsor as representative) Serbia [2006] 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 [2000] 1 WLR 354; [2000] 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 [1994] 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 than where the appellant agrees for the appeal to be determined on the papers, 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 in such cases. The following cases, likely to cover most asylum and human rights appeals, are exempt from the fee:

• Appeals against a decision to remove a person, whether as an illegal entrant under Sch 2 of the Immigration Act 1971, an overstayer under s. 10 of the Immigration and Asylum Act 1999, or following a refusal to vary leave under s. 47 of the Immigration, Asylum and Nationality Act 2006 (Article 5(1)(a)(iii), (v) and (vii) of the First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011);

• An appeal against a decision to make a deportation order under s. 5(1) of the 1971 Act (Article 5(1)(a)((ii));

• Where the appellant is supported by the Home Office under s. 95 or s. 98 of the 1999 Act (Article 5(2)): note that people supported under s. 4 are not exempted;

• Where the appellant is in receipt of LAA funding (Article 5(3)) (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);

• Whether the appellant is "the person for whose benefit services are provided by a local authority under section 17 of the Children Act 1989" (Article 5(4)). This is likely only to affect unaccompanied asylum seeker children as even where families are supported under s. 17, the parents are unlikely to be the person "for whose benefit" those services are provided.

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 indicates that in order to obtain an "exceptional circumstances" fee remission:

You will need to clearly show that your inability to pay the appeal, or have it paid for you, is due to exceptional circumstances.

You should also include appropriate supporting evidence with your application. The type of evidence that you may wish to submit will be dependant on your own personal circumstances. For example you may wish to provide notices threatening legal action due to non-payment of bills or housing costs, details of your income, savings, capital, or any other information that you deem appropriate to explain why you cannot pay your appeal fee or have the fee paid for you because of exceptional circumstances. All evidence must be in English or accompanied by a certified translation into English.

You must sign and date your written application, and confirm that all the information you provide is true. Your application will be refused if any evidence you provide is found to be incorrect. We reserve the right to prosecute any person making a fraudulent claim.

...

All applications for exceptional circumstances remissions are considered on a case by case basis and on their own individual merits. If you can prove that your circumstances are exceptional, then certain designated officials within HMCTS have the discretion to grant a remission. Decisions are based on the information provided at the time the appeal fee is due. To be successful HMCTS will need to be satisfied that:

financial hardship is due to exceptional circumstances;

the circumstances claimed are 'exceptional'; and

the existence of the circumstances claimed have been proved.

If exceptional circumstances fee remission is rejected, the guidance provides for reconsideration by a more senior official within HMCTS. There is no 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). The Tribunal's Fees Guidance indicates that appellants who cannot arrange for their fees to be paid by card should submit their appeals, following which the Tribunal will write to tell them how to pay the fee directly into the Tribunal's bank account.

4.4E Article 8(1) 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 On present authority it is unclear whether a rule 22 decision can in general be appealed to the Upper Tribunal. However, 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 (see Chapter 39 for guidance on applying for an order under rule 9(1)). 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). 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).

Grounds of appeal

4.5 The practical benefits of filing very detailed grounds of appeal are in many cases limited. Conditions may change by the full hearing. Prior to the hearing, you will be directed to produce a skeleton argument which should set out your case. An advocate may wish to pursue points 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.

4.6 The Rules state that the notice should include the 'grounds for the appeal' but, unlike the old Rules, no longer require reasons in support of those grounds'. The available statutory 'Grounds of appeal' are listed in s.84(1) of the 2002 Act and the reference to 'grounds of appeal' presumably refers to these grounds. In cases to which the old appeals provisions apply (see the Preface for an explanation of the cases to which the new appeals provisions introduced by the 2014 Act apply), for the purposes of s. 82 appeals they are:

(a) that the decision is not in accordance with immigration rules;

(b) that the decision is unlawful by virtue of Article 20A of the Race Relations (Northern Ireland) Order 1997 or by virtue of section 29 of the Equality Act 2010 (discrimination in the exercise of public functions etc) so far as relating to race as defined by section 9(1) of that Act (discrimination by public authorities); ;

(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights;

(d) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom;

(e) that the decision is otherwise not in accordance with the law;

(f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules;

(g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights.

4.7 If you are lodging an asylum/human rights appeal, your grounds should always include that set out at (g). You would often also include ground (c) and, where you rely on humanitarian protection, ground (a), that the decision is not in accordance with the Immigration Rules. It may also be useful to include a ground of appeal to the effect that 'the decision is otherwise not in accordance with the law' (s.84(e)). If you are contending that the immigration decision is unlawful on public law grounds because it is inconsistent with Home Office policy, you should also identify the relevant policy in your notice of appeal. Other grounds may be appropriate in a particular appeal. But the above should ensure that the statutory grounds of appeal that you identify do not limit the future development of your asylum or human rights case. The only ground of appeal where the right of appeal is under the old s. 83 or s. 83A is that the decision is contrary to the Refugee Convention or to the obligations under the Qualification Directive to grant temporary protection.

4.7A Where the 2014 appeals provisions apply, the grounds of appeal against the refusal of a protection claim are (new s.84(1)):

(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 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).

On an appeal against the refusal of a human rights claim, only ground (c) is available (s. 84(2)); and an appeal against the revocation of protection status may only be brought on the grounds that that decision is contrary to the Refugee Convention or the UK's obligations to persons eligible for humanitarian protection.

4.7B The present notice of appeal has not been amended to reflect the removal of the requirement to give reasons in support of grounds but did not in any event reflect the distinction in the previous procedure rules. There is no separate invitation to identify the grounds of appeal and to give reasons in support of the identified grounds. Instead, under the heading 'Grounds of your appeal' are six boxes in which the appellant is asked to address various points 'if your appeal relates in whole or in part to an asylum decision'. The form asks the appellant to give reasons for disagreeing (if applicable) with the Home Office's 'interpretation of the situation in your country', any reliance by the Home Office upon internal relocation, an adverse credibility finding, and a claim by the Home Office that no Refugee Convention reason was engaged. It also states that 'If the Home Office has stated that specific articles of the ECHR do not apply to your case, and you disagree, please explain why in this box', as well as a box for explaining why the appellant disagrees with a decision that she is not entitled to humanitarian protection in accordance with the Refugee or Person in need of International Protection (Qualification) Regulations 2006. This reference to the 2006 Regulations is confusing, given that the requirements for eligibility for humanitarian protection are in fact laid down in the Immigration Rules rather than in the Regulations, to which it is assumed that the question is intended to refer. It also provides a box for "anything else in the refusal letter that you disagree with".

4.7C The next box asks the appellant to give reasons for disagreeing with 'a non-asylum decision' and 'refer to the paragraphs of the refusal letter'. Somewhat oddly, appellants pursuing a human rights rather than an asylum claim are not directed to the question addressing articles of the ECHR.

4.7D While the form states 'Give as much detail as possible', it may be neither necessary nor useful to set out over elaborate argument in the notice of appeal. There is no point whatsoever in including pages of 'standard' arguments in support of a generic asylum/human rights case. They will not assist the Tribunal and are likely only to irritate it if they are read at all.

4.7E The Tribunal will consider the notice of appeal at the CMRH. 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) now 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 [2008] 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).

4.7H Whereas the Tribunal previously adopted the benign practice of writing to appellants giving them a month to submit grounds of appeal if a notice of appeal was submitted without grounds, in RS and FD (Appeals without grounds) Jamaica [2006] UKAIT 00064, the Tribunal determined that it would normally be appropriate to determine the appeal without a hearing in those circumstances unless some reason is given as to why grounds of appeal have been omitted.

4.8 There will be circumstances, however, where it is important to raise specific matters in the grounds of appeal. 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 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, in appeals to which the 2014 appeals provisions apply, the Home Office must consent under s. 85(5) to the Tribunal raising 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 in the notice of appeal (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).

4.9 Where there has been a failure to follow Home Office policy or impropriety at the interview, it will be valuable to raise these in the grounds even if the prospects of a constructive response from the Home Office are forlorn. You can point to the reference in the grounds (and the absence of any Home Office response) in order to highlight to the Tribunal how seriously you viewed the matter. If the flaw is particularly serious, consider also making a formal complaint to the Home Office.

4.10 Home Office policy is that it will not usually respond to grounds which comment on the reasons for refusal. However, rule 24(2) now requires it to "provide the Tribunal and the other parties with a statement of whether the respondent opposes the appellant's case and the grounds for such opposition" where it intends to change or add to the grounds on which it made the original decision. Although the rules do not specify any sanction for failure to comply with this rule, the Tribunal has a general power under rule 6(2) to take "such action as it considers just" in response to a failure to comply with a rule. The just response to an attempt by the Home Office to change or add to the grounds for its decision at a hearing is likely to be affected by whether the Home Office's attempt to change its position is in response to something raised in the notice of appeal, or only at or shortly before the hearing.

4.10A Where the Home Office does serve a supplementary refusal letter following receipt of the appeal, it often does not assist in narrowing the issues. The Home Office may propose that you submit further grounds of appeal in response to its supplementary refusal letter. Most often, there is neither procedural need nor much utility in doing so, although the Tribunal has encouraged the parties not only to seek to confine and narrow the issues at the appeal but to reduce any such agreement to writing (see Chapter 6).

4.11 The notice of appeal also includes a space for additional grounds (see chapter 5 for the one stop procedure).

4.11A The notice of appeal must be accompanied by "any documents in support of the appellant's case which have not been supplied to the respondent". Given that the standard directions require only that documentary evidence be filed and served a week before the hearing and that the CMRH provides the opportunity for the Tribunal to question the parties about evidence, it will seldom be necessary to provide a detailed list of documents to be relied upon at the point at which the appeal is lodged. It is usually sufficient to say that a paginated bundle of evidence will be served in accordance with directions.

Time limits and late appeals

4.12 Rule 19(2) 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 Unlike the previous rules, 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 [2010] 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.

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.

4.14 […]

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.

Procedure for determining whether to extend time

4.17 Rule 20(3)-(5) provides:

(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 previous Procedure Rules purported to preclude the Tribunal from determining the issue by way of a hearing. There is no such prohibition in the new Rules, which simply state that the Tribunal may decide this issue without a hearing (rule 20(4)).

4.19 Nor are there the previous restrictions on whether and if so when written evidence may be submitted in support of an application for an extension of time. While rule 10(3) now 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 [2003] 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)), EU law now requires that any determination of a person's EU law rights (which includes the right to be granted refugee status or humanitarian protection if the qualification criteria are met) be subject to equivalent guarantees (see, in particular, Article 47 of the Charter of Fundamental Rights and C-411/10 NS v SSHD).

Issues

4.22 The Tribunal emphasised in BO and Others (Extension of time for appealing) Nigeria [2006] 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 new 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.

4.23A In OI (Notice of decision: time calculations) Nigeria [2006] 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 CHH (Notices Regulations – right of appeal – leave to remain) Jamaica [2011] UKUT 121 (IAC), the Tribunal considered the effect of what it described as the "complicated procedure" laid down in the Notices Regulations for the situation where an immigration decision is taken which carries only a restricted right of appeal, but the appellant wishes to raise asylum, human rights or race discrimination grounds of appeal. The Notices Regulations do not require service of a notice of appeal with the original decision where there is a restricted right of appeal. Instead, they require the Home Office to re-serve the decision with a notice of appeal once an individual has raised a challenge based on human rights, asylum or race relations grounds. The Tribunal held that there was no time limit for raising such a challenge in response to the initial notice of decision in such a case, and that time under the Rules only started to run once the Home Office had re-served the notice of decision together with a notice of appeal. This procedure, which is set out in Regulation 5(6)-(8) of the Notices Regulations, is repealed in relation to appeals against decisions to which the 2014 appeals provisions apply.

4.23C In BO [2006] 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."

4.23D 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. However, the guidance laid down in BO [2006] UKAIT 00035 and the other decisions discussed in this chapter is likely to continue to influence Tribunal decision makers and you should still refer to the factors discussed in these cases in support of an application to extend time for appealing. The time limits for appealing cannot simply be ignored, and there are other serious consequences of failing to lodge an appeal in time, such as the loss of s. 3C leave.

The other factors referred to in paragraph 20 of BO [2006] UKAIT 00035 would include the 'strength of the grounds of appeal' (although the Tribunal warned against using apparently weak but viable grounds as a reason for refusing to extend time), 'the consequences of the decision', the 'length of delay' (although it emphasised that even a short delay should be explained), and 'mistakes, delays and breaches of Rules by the Respondent' (this latter factor covering misleading information to the appellant about time limits and very extensive delay in dealing with the appellant rendering it disproportionate to refuse to extend time). The lack of prejudice to the Home Office will however be the same in each case will not have any force in an individual application.

4.23D The guidance in BO [2006] UKAIT 00035 was endorsed by the Administrative Court in TR v AIT [2010] EWHC 2055 (Admin), in which HHJ Anthony Thornton QC held as follows:

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 indicates 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). In the latter case, the IAT held that:

"We have accepted that the failure of a representative, if not attributable to the client, and if the client has behaved reasonably is capable of amounting to a special circumstance."

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 [2007] 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 [1976] 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 [2010] 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 [2010] 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.

4.26 The Rules require the Tribunal to give reasons for refusing to extend time (rule 20(5)). In BO [2006] UKAIT 00035, the Tribunal stated that:

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 [2010] 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)

4.26A In NA (Excluded decision; identifying judge) Afghanistan [2010] 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 * [2004] 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 [2006] 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 [2010] 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. 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* [2004] 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 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 now 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 held that it can re-determine the point EA (Timeous appeal treated as late) Ghana [2006] 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 [2006] 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 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.

Representation

4.27 Rule 10 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.

4.29 Rule 10(5) entitles a representative to receive a copy of any document served by the Tribunal on the appellant. However, rule 12(4) also provides that

(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. a report from the Medical Foundation (now known as Freedom from Torture) for which there is currently a long waiting list, you should therefore be pursuing these steps now rather than waiting for the notice of hearing.