[2004] UKIAT 00201
(starred) and the clear wording of rule 24(4) of the Asylum and Immigration (Procedure) Rules 2005, the grant of permission to appeal is conditional, and the question of whether there are special circumstances making it unjust not to extend time has to be considered. The Upper Tribunal in Samir (
FtT
Permission to appeal: time)
[2013] UKUT 3
(IAC)
followed
Boktor
save that
it held that
, ‘
if the application was to the First-tier Tribunal, the decision as to time is therefore made by the First-tier Tribunal, and if the application is not admitted there is the possibility of renewal to the Upper Tribunal’.
The Tribunal in
Samir
considered that, where
an
issue of timeliness had been overlooked by the First-tier Tribunal and was
then
raised before the Upper Tribunal, it would be necessary for the Upper Tribunal Judge to
determine the question sitting as a judge of the First-tier Tribunal.
10.
The appellant in the instant appeal relies on
Boktor
and argues that ‘whether to extend time is a discretionary judgment for the relevant judge considering all the relevant circumstances and, in this particular case, Judge Chohan has not exercised that discreti
on … it is submitted that this case is no different from the established cases where the issue of timeliness has not been considered at all
’ [skeleton argument, 15
and 16
].
11.
I disagree.
First, the approac
h advocated by the appellant would lead to the procedural problem identified in
Samir
; if,
sitting
as a judge of the First-tier Tribunal,
I
decided the issue of timeliness against the respondent, I would be unable to refuse to
hear
the appeal in the Upper Tribunal (as the appellant proposes) without depriving the respondent of the opportunity to renew her application for permission to the Upper Tribunal.
T
here is, however, a more fundamental problem with the appellant’s argument.
The
judge
found
that
no
issue as to timeliness arose at all. He decided (wrongly
,
as it happened
) that the appeal was in time. In my view, it is not possible
for the Upper Tribunal
to ignore
and
then
circumvent
the judge’s decision on timeliness
simply because it is wrong
.
The
decision is clear and unambiguous.
Unlike the Tribunal in
Boktor
,
it is clear from the file note and paragraph 1 of the grant of permission that
the judge has considered the reasons given for delay but concluded that these were
not relevant
.
As soon as his decision had been recorded in its final form
, Judge Chohan
became
functus officio
; as we shall see
at [11] below
,
it was
thereafter
not possible for Judge Chohan or any other judge of the First-tier Tribunal to change
the
decision
unless the ‘slip rule’ applies
. Equally, it would be wholly inconsistent with the doctrine of
functus officio
for the Upper Tribunal
to ignore
a
decision on timeliness and to
exercise its own
discretion
on the basis that, because both parties agree that it was wrong, the judge’s
decision
, in effect,
d
oes
not exist. By
finding that the application for permission was in time, the judge has
decided
that it was unnecessary to exercise
any
discretion
.
This is not a case where the judge has simply overlooked the fact that the application was out of time; on the contrary, he has engaged with the issue of timeliness and
has
reached
an unequivocal
decision
on that issue
.
The circumstances here are
,
perhaps
,
unusual as we have the judge’s file note but, even if we did not, it is difficult to see how it would be possible to go behind his
clear
finding at paragraph 1 of the grant that the application had been made in time.
I
t follows that, if
a remedy exists, then it
is not to be found
in
the principles of law and practice articulated in
Boktor
and
Samir.
12. Since bo th parties agree that Judge Chohan made a mistake , can that mistake be corrected under the ‘slip rule’? Paragraph 31 of the Procedure Rules provides: 31. The Tribunal may at any time correct any clerical mistake or other accidental slip or omission in a decision, direction or any document produced by it, by— (a) providing notification of the amended decision or direction, or a copy of the amended document, to all parties; and (b) making any necessary amendment to any information published in relation to the decision, direction or document. In the recent decision MH (review; slip rule; church witnesses)
Iran [2020] UKUT 125 (IAC), the Upper Tribunal
held that:
A decision which contains a clerical mistake or other accidental slip or omission may be corrected by the FtT under rule 31 (the 'slip rule'). Where a decision concludes by stating an outcome