Case No. UKUT-00378-(IAC)

1. I shall refer to the appellant as the ‘ respondent ’ and the respondent a s the ‘ appellant ’ , as they appeared respectively before the First-tier Tribunal. The appellant was bor n on 12 February 1997 and is a male citizen of Rwanda. He appealed to the First-tier Tribunal against a decision of the Secretary of State dated 6 June 2019 refusing his application for international protectio n. The First-tier Tribunal, in a decision promulgated on 20 December 2019 , allowed the appeal on asylum and human rights (Article 3 ECHR) grounds. The Secretary of State now appeals, with permission, to the Upper Tribunal. 2. At the initial hearing held via Skype for Business on 7 August 2020, I was asked by both parties’ representatives to deal with a preliminary issue arising from the grant of permission of First-tier Tribunal Judge Chohan. Paragraph (1) of the grant of permission states, ‘The application is in time.’ The remainder of the grant consists of the judge’s reasons for finding it arguable that the First-tier Tribunal had erred in law. At the initial hearing, both representatives told me that they agreed that Judge Chohan had been wrong to find that the application for permission to appeal had been made in time . Mr Cole, who appeared for the appellant, submitted that I should find that the application for permission had been out of time, that I should not extend time and that I should decline to hear the appeal accordingly . The respondent submit ted that, if I considered it necessary, I should exercise discretion to extend the time for appealing. 3. The judge’s finding at [1] is strange given that , at Part B of the application, the Secretary of State has given her reasons for applying for an extension of time : ‘ A lthough it might be considered that this application is 4 days out of time, the decision was received over the Christmas holiday/bank holidays where an inadequate amount of staff was available to consider the decision and lodge grounds of appeal and therefore it is requested that in the interests of justice time is extended.’ Following a brief discussion, I adjourned the initial hearing to enable both parties to make further written submissions on Judge Chohan’s decision as to timeliness. Both parties have delivered helpful submissions and the initial hearing was concluded by Skype for Business on 16 October 2020 . I reserved my decision. 4. First, I have considered whether Judge Chohan has simply overlooked the Secretary of State’s application to extend time. At the hearing on 7 August 2020, I told the representatives that , in the Tribunal ’s file , there is a copy of the notice of receipt of application for permission to appeal which bears two endorsements. First, there is a sticker placed on the document by a member of the First-tier Tribunal administrative staff and which reads, ‘Dear Sir/Madam. Please find enclosed Application made that the application had been made ‘OOT’ [ out of time ] . D ate due: 06.01.2020. Date Rec’d 07.01.2020’ Adjacent to the sticker is a manuscript note signed by Judge Chohan. This note reads, ‘Xmas bank holidays must be taken into account. Application in time.’ The judge’s note is dated 22 January 2020. Whilst t he Secretary of State’s statement in Part B of the application form i s somewhat equivocal (‘ …it might be considered that… ’) , I am satisfied that the judge was aware that timeliness was an issue. At paragraph (1) of the grant of permission , he has given his reason why he did not consider it necessary to exercise any discretion as to an extension of time . 5. The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (‘The Procedure Rules’) , paragraph 33(2) pr ovides: 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. The Secretary of State’s application for permission was delivered to the First-tier Tribunal on 7 January 2020. The Tribunal file has a copy of the covering letter sent to the parties with the First-tier Tribunal decision. That letter has been endorsed ‘issued’ by post ‘via rep[ resentative ]’ 23 December 2019 ’ . The parties agree that the last date for the application to have arrived at the First-tier Tribunal in time was 6 January 2020 and th at consequently the application was one day out of time (not four days , as the Secretary of State herself seems to have believed). Whilst it is clear from the judge’s note on the file that he believed that bank holidays ( i.e. Christmas Day, Boxing Day and New Year’s Day) should be ‘taken into account’ both parties accept that the judge was wrong. The appellant’s skeleton argument contends at [11 ]: The 14 day time-limit relates to calendar days and not working days. This is not specifically stated in the Tribunal Procedure Rules, but it is accepted practice that it is only time limits of 5 days or less that exclude Bank Holidays and other non-working days (see CPR 2.8(4)). The only provisions in the Procedure Rules regarding time appear at paragraph 11: 11.—(1) An act required or permitted to be done on or by a particular day by these Rules, a practice direction or a direction must, unless otherwise directed, be done by midnight on that day. (2) Subject to the Tribunal directing that this paragraph does not apply, if the time specified by these Rules, a practice direction or a direction for doing any act ends on a day other than a working day, the act is done in time if it is done on the next working day. 6 January 2020 was a Monday and so not a ‘day other than a working day ’ . 6. I have not been asked to determine whether the ‘accepted practice’ in the First-tier Tribunal of excluding non-working days applies only to time limits of 5 days or less (as CPR 2.8(4) indeed provides) is legally correct ; both partie s have made their submissions on the understanding that it is. What is clear, however, is that there is no support in the Procedure Rules for Judge Chohan’s declaration that bank holidays ‘must be taken into account.’ 7. The sticker placed on the file by Tribunal staff was, therefore, correct; the application for permission was one day out of time. The question remains as to what, if anything, the Upper Tribunal can and should do to correct the judge’s error. 8. First, I have considered whether the Upper Tribunal should , with the support of both parties or otherwise , reverse Judge Chohan’s decision that the appeal was in time. In short, it cannot. In NA (Excluded decision; identifying judge) Afghanistan [2010] UKUT 444 (IAC), the Upper Tribunal considered the question: ‘ Does a right of appeal lie to the Upper Tribunal against a decision that a notice of appeal is out of time and not to extend that time?’ . By extension, the question posed by Judge Chohan’s decision will have the same answer. The Tribunal in NA held: 18. As will be clear, the right of appeal is from any decision of the First-tier Tribunal on a point of law other than an “excluded decision”. Section 11(5) of the 2007 Act sets out what, for the purposes of subsection (1) is an “excluded” decision. None of the decisions in s.11(5), as originally enacted, are relevant to this appeal. However, Article 3 of the Appeals (Excluded Decisions) Order 2009 (SI 2009/275 as amended) adds a further decision to the category of “excluded decisions” which is relevant. Article 3 states that: “3. For the purposes of section 11(1) and 13(1) of the Tribunals, Courts and Enforcement Act 2007, the following decisions of the First-tier Tribunal or the Upper Tribunal are excluded decisions – …. (m) any procedural, ancillary or preliminary decision made in relation to an appeal against a decision under section 40A of the British National Act 1981, section 82, 83 or 83A of the Nationality, Immigration and Asylum Act 2002, or regulations 26 of the Immigration (European Economic Area) Regulations 2006.” 19. That provision reflects the wording of s.103A(7) of the Nationality, Immigration and Asylum Act 2002 (now repealed) which excluded from the category of decisions of the Asylum and Immigration Tribunal which could be subject to the reconsideration process any “decision on an appeal” which was “a procedural, ancillary or preliminary decision”. The words “procedural, ancillary or preliminary” which define the nature of the decision remain the same; the current provision (s.11(1)) requires that the decision be “in relation to an appeal”, whilst the reconsideration framework (s.103A(7)) required it to be a decision “on an appeal”. 20. There is no doubt that the decision in this case is a “preliminary” decision by the First-tier Tribunal. Indeed, rule 10(6) of the First-tier Tribunal Procedure Rules states, inter alia, that “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 without a hearing…” (emphasis added) 21. That, in our judgment, reflects what must be the natural meaning, and consequent effect of, the legislative words initially in s.103A(7) of the 2002 Act and now found in Art 3 (m) of the 2009 Order as amended. At [23], the Tribunal concluded: 23. In our judgment, there was no statutory basis upon which to grant permission to appeal to the Upper Tribunal in this case. The fact that it was granted cannot confer a jurisdiction upon the Upper Tribunal which it does not have. There is no valid appeal before the Upper Tribunal . The Upper Tribunal has no jurisdiction to reverse the decision on timeliness taken by the First-tier Tribunal. That both parties agree that the decision was wrong makes no difference to the position ; the parties cannot give the Tribunal a jurisdiction it does not possess . 9. Can the Upper Tribunal exercise a discretion as to the extension of time because the First-tier Tribunal has failed to exercise it? The appellant relies on the Upper Tribunal decision in Boktor and Wanis (late application for permission) Egypt [2011] UKUT 00442 (IAC ) : Where permission to appeal to the Upper Tribunal has been granted, but in circumstances where the application is out of time, an explanation is provided, but that explanation is not considered by the judge granting permission, in the light of