CA-2024-002479 - [2025] EWCA Civ 1464

It is common ground that the time limit for the UT to receive a claim form in relation to the respondent’s decision expired on 3 April 2023.

The appellant said that on 26 March 2023, which happened to be a Sunday, he posted to the UT a claim form for judicial review and that he did so at the Chelsea Royal Hospital post office. There is no issue about the correctness of the address which the appellant says he used for the UT.

The copy of the claim form challenged the decision dated 3 January 2023 and contended that the respondent had misinterpreted her policy or that she had applied it irrationally.

Having heard nothing from the UT, in April 2024 the appellant retained the services of the solicitors currently acting for him. They advised him that following the submission of his application for permission, he should have received from the UT an acknowledgement and a sealed version of the claim form. That had not happened.

Accordingly, on 22 April 2024 the solicitors emailed the UT to say that, although the appellant had submitted his application on 26 March 2023, he had not received any response. They asked the Tribunal to give an update. On 24 April 2024 the UT replied to say that they had no record of any application having been made by the appellant.

On 26 April 2024 the solicitors sent to the UT an application for permission to apply for judicial review of the decision made on 3 January 2023. The claim form accepted that the UT had not received the earlier application and asked for an extension of time down to the receipt by the Tribunal of the fresh application. The form stated that it was accompanied by a “proof of posting” for the earlier application for judicial review. But it appears that that document was not provided at that stage.

On 18 June 2024 the appellant’s solicitors sent a statement to the UT that it had provided a sealed copy of the claim to the respondent that day. On 26 June 2024 the UT extended time for compliance with rule 28A(2).

On 20 June 2024 the Government Legal Department emailed the appellant’s solicitors to say that they had not been provided with the grounds of challenge and the bundle accompanying the claim. The Statement of Facts and Grounds was subsequently provided.

On 22 July 2024 the respondent served an Acknowledgement of Service with Summary Grounds of Defence. The respondent pointed out that the appellant had given three different dates, including 26 March 2023, for the service of his original claim form and called for an explanation. She submitted that the application should be dismissed on the grounds of delay, given that it was long out of time and the appellant had not explained why he had taken over 14 months to make it. The respondent then maintained her interpretation of the policy on Coronavirus concessions.

On 4 September 2024 UT Judge Norton-Taylor refused to admit the application for judicial review after considering the matter on the papers. The judge referred to the unexplained discrepancies as to the dates when a claim had been sent in 2023 and the absence of any proof of posting. He said that the lack of any explanation for the subsequent inaction on the appellant’s part indicated that the claim form had not been posted at all in March 2023. The appellant had not provided a witness statement.

The judge then went on to accept the respondent’s explanation of the policy on Covid concessions and decided that no arguable error of law had been made, although it appears that neither side provided the UT with a copy of those policies at that stage.

The appellant renewed his application for permission to an oral hearing which took place on 9 October 2024 before Upper Tribunal Judges Perkins and Ruddick.

The appellant’s solicitor Mr. Pasoon Sadozai gave a witness statement dated 19 September 2024, explaining that there had been typographical errors in the dates given previously for the posting of the claim form in 2023. The appellant had posted it on 26 March 2023.

The appellant provided a witness statement dated 1 October 2024. He stated that he had drafted the grounds of challenge and completed the claim form himself. He produced a certificate of posting bearing a stamp of the Chelsea Royal Hospital post office dated 26 March 2023. He said that he had not been aware of the procedure requiring him to notify the Home Office of the claim and to expect an Acknowledgement of Service in return (para.13). Then in the following paragraph the appellant moved forward in time to April 2024 when he instructed solicitors because he had not heard from the UT. His evidence at para.18 on the intervening period of 13 months was as follows:

“I respectfully inform the court that I was not aware of the specific procedures. I regularly queried my former representative to ascertain the progress of my application, and I was advised to wait.”

Counsel then appearing on behalf of the appellant produced a skeleton dated 27 September 2024 for the hearing. By that stage the appellant had access to the relevant policy documents which, he submitted, showed that the Covid concessions in force on 31 August 2021 when the appellant had made his application for leave to remain under the OBR rules still allowed him to switch to that route, just as his wife had done. The skeleton also addressed the principles for granting an extension of time and the circumstances of this case.

It appears that the respondent did not provide a skeleton argument for the hearing responding to the appellant’s submissions.

We have been provided with a transcript of the hearing in the UT on 9 October 2024 occupying some 19 pages. The initial discussion between the Tribunal and the appellant’s counsel mainly related to the interpretation of the policy documents (pp.3 to 6). However, Judge Perkins told counsel that the Tribunal was concerned about the suggestion that the appellant, who was living in Ilford, had travelled to Chelsea to post his claim. Counsel explained that the appellant spent a good deal of his time in West London (p.2). At page 7 the judge said the Tribunal was very much bothered by the lack of an explanation in the evidence for the choice of post office and the fact that the date of the claim and the date of posting were the same.

Mr. Yarrow, who appeared for the respondent before the UT and before us, addressed the interpretation of the policy documents at pp.7 to 9 and the appellant’s counsel replied at pp.10 to 12.

After retiring with his colleague, Judge Perkins then said to counsel that the Tribunal was troubled about the certificate of posting and asked whether the appellant could be called to give evidence (p.13). The appellant did give evidence. He confirmed the accuracy of his witness statement (pp.14-15). Judge Perkins asked the appellant’s counsel to put certain questions and then posed some questions himself. The appellant said that he submitted his claim form to the UT by post on 26 Match 2023 (pp.16-17).

The appellant explained that he had posted the claim form himself at the weekend. He had been in West London, as was often the case at weekends and found the nearest post office to be at the Royal Chelsea Hospital. He explained in answer to questions from the judge why the form bore the same date as the certificate of posting and how it was that he had been able to find that certificate for use in the litigation.

Then the Tribunal asked questions which raised an issue for the first time in the proceedings as to whether the claim could have been posted on 26 March 2023 because that was a Sunday and post offices were not thought to be open on that day of the week (pp.17-18):

“JUDGE PERKINS: One thing that is really troubling us, Mr Baparee, is that…Just remind me of the date on there please, just to see if you are reading it the same. What is the date on there?

A.

26 March.

JUDGE PERKINS: 26 March, yes. We have looked it up and we think 26 March is a Sunday. Could that be right?

A.

Yes, weekend. It was weekend, My Lord. Saturday or Sunday.

JUDGE PERKINS: We are not aware that post offices of opening on Sundays.

A.

Yes, post offices are open on Sunday.”

There the UT’s questioning of the appellant finished. The appellant’s counsel did not take up the opportunity given to him to ask any further questions. Mr. Yarrow did not cross-examine the appellant at all and so there was no re-examination.

At that point Mr. Yarrow simply said that he would invite the UT “to take formal judicial notice of the fact that post offices are not open on a Sunday”. He made no other submissions on the issues relating to delay and extension of time. This was the first time that judicial notice was raised. It only arose because of the questions which the UT had put. There had been no suggestion from the respondent before the hearing that the claim had not been posted on 26 March 2023 because that date was a Sunday.

The appellant’s counsel interjected that he was not sure that it was correct to say that post offices do not open on a Sunday. Judge Perkins responded “Well, that’s a submission…”. The judge also said “I think it is entirely contrary to our experience. I am not sure it is within the scope of judicial notice”. Given that comment and the way in which this subject arose at the end of the hearing, counsel for the appellant could be forgiven for not appreciating the crucial part it would play in the UT’s decision not to admit the claim.

The UT retired to consider its decision and then gave an ex tempore judgment dismissing the claim. We have not been supplied with a transcript of the judgment. Both parties have been content for the appeal to be determined on the basis of the UT’s written reasons for its decision, as set out in its order dated 10 October 2024 (see rule 30(1) of the 2008 Rules).

In so far as is relevant to the submissions made by both parties in this appeal, the UT’s reasons included the following:

“5.

The applicant’s solicitor has explained that the applicant told him that he had filed this application for judicial review on 26 March 2023. The applicant has confirmed this in his further witness statement. He said that he served the application by ordinary post. His statement exhibits a Certificate of Posting showing one item sent to the Upper Tribunal at the Chelsea Royal Hospital Post Office on 26 March 2023.

6.

We find the evidence concerning the attempt to serve papers on the Tribunal to be very unsatisfactory. We asked to hear oral evidence from the applicant. The applicant lives in Ilford. He has produced a Certificate of Posting issued by the Chelsea Royal Hospital Post Office. The applicant says that he spends time in West London because he “liked the structures”. The Certificate of Posting is dated 26 March 2023 which we believe to be Sunday. In our experience Post Offices do not open on Sunday.

7.

The applicant said that he was able to produce the certificate of posting easily because it is his habit to keep his papers in order. That may be right, but we still find it remarkable that he was able to produce such a document but not to consider, for example, sending the item by recorded delivery.

8.

We are not satisfied that we have been given a full explanation for the attempt to send the claim by post on the Tribunal, which, as far as we know, never received it.

9.

On 22 April 2024 (he was not instructed until “mid-April 2024”) the applicant’s solicitor asked the Upper Tribunal about the status of the application and it transpired that the Tribunal had no record of it.

10.

We are not satisfied that it was ever sent.

11.

Before deciding on the merits on the application we have considered the merits of the case. It is the applicant’s core contention that, under the terms of the policy then in force, he was qualified by reason of benefitting from “exceptional assurance”. The relevant policy includes the words:

“You are also able to apply for permission to stay to remain in the UK if you have been issued with an ‘exceptional assurance’. You must submit your application before the expiry of your ‘exceptional assurance’.”

12.

Mr Yarrow has given cogent reasons for interpreting the phrase more narrowly than its plain meaning but we find it arguable that the applicant did come within the scope of the policy because he did have exceptional assurance (wrongly identified as leave to remain in the Summary Grounds of Defence) and submitted his application before it expired.

13.

With this finding in mind we are hesitant to refuse permission because the application for judicial review was late but it is clear that the application relied upon was late and it is far from clear that the applicant ever tried to make a timely application.

14.

Even if he did it did not arrive, and he did nothing to chase it for more than a year. That is a long delay and the respondent was entitled to consider the matter closed.

15.

There is no good explain for the delay other then not understanding the process of seeking judicial review.”