Hakim-Hashemi v The Secretary of State for the Home Department

Crown Copyright© LADY JUSTICE ELISABETH LAING:

1. The Secretary of State applies for permission to appeal from the determination of the Upper Tribunal (Immigration and Asylum Chamber) (‘the UT’) issued on 14 October 2024, ‘the determination’. The Secretary of State also applies for an extension of time for filing the appellant's notice. At a stage when those were the only two applications before the court, I called this case in for oral hearing in an order sealed as long ago as August of last year. The Secretary of State today now also applies for an extension of time for the service of some evidence - that is the evidence that I ordered in that order - and for permission to amend the appellant's notice by the issuing of a further ground of appeal. As Mr Toal points out, the evidence in question was not provided until after the close of business yesterday, which is quite extraordinary. The statement in support of the application, in an attempt to explain why this evidence was so late, said that the solicitor with conduct of the case did not make Mr Wain, the senior presenting officer who is involved with this case, aware of the hearing date until 14 January 2026, in circumstances where I had ordered evidence to be provided in good time for the oral hearing that was listed for today. That is the background to one of the applications that I am dealing with today.

2. When I made the order, I had two main concerns. The first was that the arguability threshold had been met and, subject to one qualification, also the second appeals test, but there had been significant and unexplained delay in filing the appellant's notice. I was also concerned that the appeal was academic because the relevant legislation had changed in the meantime. In short, I ordered the Secretary of State to file evidence explaining the delay and to inform the court about whether there are any other cases in the pipeline which raise this point. At the hearing today the Secretary of State was represented by Mr Payne KC and Mr Moss, and the respondent was represented by Mr Toal. I am extremely grateful to all counsel involved for their excellent and helpful oral and written submissions. I have not found this at all easy and I have been significantly assisted by their efforts.

3. I will say a little about the facts. The respondent is a national of Iran, who was given entry clearance and entered the United Kingdom in January 2010 with a spousal visa which was valid until 2011. He was later given leave to remain until 19 September 2014. He was detained in the Czech Republic in 2012 and later extradited, with consent, to the United States of America. He was charged with conspiracy to export prohibited items, military aircraft parts, to an embargoed country, Iran. He was convicted in 2013 and sentenced to 27 months' imprisonment. The authorities in the United States put him on a plane to the United Kingdom on his release from prison. His leave to remain was still current and he was admitted to the United Kingdom. He claimed asylum and, on 14 March 2019, the Secretary of State refused that application on the grounds that the respondent was excluded from the protection of the Refugee Convention by article 1F(b). The Secretary of State gave the respondent restricted leave to remain on the grounds that his removal to Iran would breach articles 2 and 3 of the European Convention on Human Rights. He appealed. The First-tier Tribunal (Immigration and Asylum Chamber) ("the FTT") dismissed his appeal in determination 1. The UT gave him permission to appeal and, on 6 December 2019, the UT set aside determination 1, preserved the FTT's findings of fact, and decided that the UT would re-make the decision. The UT allowed the respondent's appeal in determination 2. As the UT recorded determination 2, the appeal in the UT took a very long time and some of those delays were laid at the door of the Secretary of State, although the Secretary of State points out that there was a delay of nearly a year between the hearing in front of the UT and the eventual promulgation of determination 2. It is unnecessary for me to say anything about the legal issues because, for the reasons I gave in the order calling this in for an oral hearing, I am satisfied that they are strongly arguable. I would add, as Mr Toal pointed out in his skeleton argument, that under the relevant practice direction, the UT's decision is not binding on other constitutions of the UT, as it is not a starred determination and it may only be cited with permission. It might be thought that this greatly reduces the importance of this determination as a potential precedent. This is a point to which I will return in due course.

4. Mr Payne, in his oral submissions this morning, accepted that this is a case which had been bedevilled by delays and failures to comply with rules and orders. He submitted, in my view properly, that the public interest and the merits of the appeal tipped the balance in favour of the grant of an extension of time, albeit by a small margin. I should just set out the history of the delays now. In my order calling this matter in, I said that the application to the UT for permission to appeal to this court should have been filed not later than 12 working days from the date after the determination was sent to the Secretary of State. As I have mentioned, there was a significant delay between the UT hearing and the date when the determination was sent out, and it may be that the Secretary of State was somewhat taken by surprise when the UT determination eventually arrived. The Secretary of State's application for permission to appeal to the UT should have been made to the UT by Wednesday, 30 October 2024. It was filed out of time on Monday, 4 November 2024, three working days late. Counsel's submissions in support of the application for permission to appeal were dated 1 November 2024. The UT, in my judgment, unambiguously refused permission to appeal in a notice sent to the parties on 16 December 2024, because it had refused the extension of time. Under the heading, ‘Application for an extension of time in which to file notice of appeal’, the UT considered the explanation for the lateness of the application. The Secretary of State had decided to approach counsel, but this had taken time. The UT observed that whether or not counsel should be instructed had been a live issue as long ago as 2021. The Secretary of State must have decided nevertheless to be represented by a senior Home Office presenting officer. In paragraph 8, the UT said that unless it extended time for filing the application, it must refuse the application. It quoted rule 44(6) of the Upper Tribunal rules. It then considered the application in accordance with the relevant authorities. The Secretary of State's failing was serious, as the time fixed by the relevant rules is sufficient to permit compliance. The reasons were ‘insufficient’. The UT considered there was no merit in the grounds of appeal. Ground 1 was answered by section 36(3) and (4) of the Nationality and Borders Act 2022, which are not said to be ‘for the avoidance of doubt’. The words of the regulations were clear, as the UT had found in paragraphs 113-117 of the determination. Ground 2 had no merit. There was nothing to prevent the state party from having a more liberal regime for the recognition of refugee status than in the Refugee Convention. The UT gave examples of policies with that effect. The UT rejected ground 3, which it treated as a rationality ground.

5. The Secretary of State accepts that if the notice is read carefully, although the UT did not say so expressly, the UT refused the application for an extension of time for applying for permission to appeal. If the UT had given an extension of time for that application, the time for appealing to this court would have been 28 days, which would have run from 16 December 2024. That time limit, if it had applied, would have expired on 13 January 2025. The effect of the relevant provision of the CPR is that if the UT refuses an extension of time for the application for permission to appeal from the UT to this court, the time for appealing to this court runs from the date of the determination which is the subject of the appeal. That time limit is 21 days. A letter dated 17 March 2025 (‘the letter’) from the Civil Appeals Office (‘the CAO’) to the parties said that the appellant's notice (‘AN’) would be treated by the CAO as having been filed on 15 January 2025. The letter made clear that the receipt of the documents listed in it did not signify that this court accepted jurisdiction or that the documents were in order. That was (in this case) the Secretary of State's responsibility.

6. It seems that when the AN was filed initially there was no application for an extension of time. Such an application seems to have been made when the CAO pointed out to the Secretary of State that it was necessary. The copy of the AN in my papers seems to have been filed on 12 March 2025 but it was not sealed until 17 March 2025, the date of the letter. A box in section 10B of the AN is ticked. The explanation for the delay in section 11 of the AN was that the Secretary of State misunderstood the notice and thought that the time limit for appealing was 28 days from the date of the notice. The Secretary of State then relied on the explanation which she had given to the UT. The Secretary of State acknowledged that the merits of the grounds of appeal would only be relevant if they were very strong or very weak. I considered, at the stage when I made the order, that the vague explanation for the large part of the delay (that the Secretary of State had misunderstood the notice) was insufficient; that the reader of section 10 is not told who misunderstood the notice. A competent lawyer reading the notice would immediately have recognised that the UT was not only refusing permission to appeal but also refusing an extension of time for appealing to this court. The force of this point was all the greater because, on her own case, the Secretary of State had instructed GLD by 17 October 2025 and leading counsel by 30 October 2025. In addition, even if, which was not the case, the time limit had been 28 days from the date of the notice, it seemed that two further days' delay had not been explained. In the order I added: ‘The Secretary of State must file and serve witness evidence explaining in detail by reference to the dates and individuals concerned precisely how and when the Secretary of State came to understand that the UT had extended time for the application to the UT for permission to appeal when it is clear (at least to me) that the UT had not done so. The evidence must also explain, in similar detail, who 'considered' the 'matter' further and when, so that this court can understand who considered the relevant time limit for appealing to this court, when, and with what result. One inference from the papers I have seen is that it did not occur to the Secretary of State that an extension of time was necessary until the CAO pointed that out in March 2025. It appears from the dates of the documents signed by counsel that counsel were instructed in time for the documents to be settled, dated 1 November 2024 and 10 January 2025. There is no reference to an application for an extension of time in counsel's skeleton argument in support of the application for permission to appeal to this court. An inference could be drawn from that material that counsel were not asked to advise on that point. The evidence must explain the failure to file the AN in time, even on the (wrong) assumption that the relevant time limit was 28 days from the date of the notice. Finally, the Secretary of State must explain by evidence (or otherwise) how it is said that the second appeals test is met, given that this is now an historic issue. The Secretary of State must file that evidence and a skeleton argument 14 days before the date listed for the hearing. If the respondent decides to attend, he must file any material in reply seven days before the date listed for the hearing.’

7. The Secretary of State filed evidence partly in compliance with that order, but also, significantly as I have already mentioned, the evidence that was served after close of business yesterday evening is in breach of the time limit in the order. As Mr Toal pointed out in his skeleton argument and in oral submissions, that evidence does not fully explain the reasons for the delay in this case, or even answer all the questions which I put in the order. Having considered the evidence very carefully, and having listened to Mr Payne's submissions, what I infer is that, for reasons which I simply do not understand, a senior presenting officer simply did not know what the relevant time limit was, had not read the upper tribunal's decision carefully or properly and did not realise what, as I said, seems to me to be clear, that the upper tribunal had refused permission to appeal. I also infer that counsel were not asked to advise on the time limits and in settling the grounds of appeal simply did not focus on the issue. It seems to me that these are extraordinary and woeful lapses both by those employed by the Secretary of State and by her lawyers. In those circumstances, the Secretary of State faces a big hurdle in trying to persuade me that I should extend time for the bringing of this appeal. I accept Mr Toal's submission that the conduct of this case by the Secretary of State and her advisors has been ‘an appalling manifestation’ (his phrase) of a ‘lax culture of non-compliance’, to use a phrase from paragraph 34 of Denton v White [2014] EWCA Civ 906; [2014] 1 WLR 3926, a culture which this court said in that paragraph had to stop. Mr Payne accepted that, with hindsight, the legal team should have looked at the order that was made by the upper tribunal in which it refused permission to appeal and also refused the extension of time, and he was right to do so. I take into account the prejudice to the respondent. The decision in his case was made as long ago as 2019. The litigation has taken a very long time indeed, and as from the date when there was no in-time application for permission to appeal to the upper tribunal, he was justified in thinking that his refugee status was secure. I fully accept that it must be disappointing for him to be put in a position where, months later, the whole question of his refugee status is up in the air once again.

8. I am unimpressed by the conduct of the Secretary of State in this case, to put it mildly. I asked Mr Toal, in the course of his submissions, whether, if I were to grant an extension of time to the Secretary of State for lodging the AN, he would invite me to impose any conditions as to costs on that grant. He submitted that I should impose such a condition, and that I should require the Secretary of State, as a condition of getting the extension of time for permission to appeal, to undertake to pay all the costs of the appeal on the standard basis, to be assessed if not agreed. I asked Mr Payne to take instructions on that question. He did so, and his position is that he does not oppose that, while not formally agreeing to it. He said that the Secretary of State was neutral about that. In that situation, in my judgment, whether or not I grant an extension of time and permission to appeal depends really on the strength of the case of the Secretary of State and the public interest that might be involved, weighed against the deficiencies in the Secretary of State's conduct.

9. Mr Payne has forcefully submitted that there is a strong public interest in this appeal proceeding. He says first that there is a strong public interest in a criminal not getting refugee status if arguably he is not entitled to it; but also that there is a further public interest which goes to whether the second appeals test is met, and whether this is an academic appeal. He tells me that there are cases in the pipeline where decisions have been made, I think five of one and six of the other, so that it is important for the Secretary of State that those decisions be made and that any further litigation of cases that are already in the pipeline should be decided on the correct basis, and therefore I should admit the late evidence on this topic. Mr Toal submitted, as I have indicated, that the determination of the upper tribunal in this case has no status as a precedent, because under the practice directions it has not been starred and anyone who wished to rely on it would require permission to rely on it. He further submitted that the Secretary of State is not in the pending cases obliged to comply with this decision of the upper tribunal, a submission which I confess I had trouble with. Mr Payne disagreed, and submitted that the Secretary of State would of course be obliged to comply with determination 2, even if, in a strict legal sense, it is only binding in the appeal that was before the upper tribunal in this case, because an experienced panel of the UT has expressed its views about the point of law in very trenchant terms. I agree with Mr Payne's submission. It seems to me that it would be highly problematic for the Secretary of State not to follow a decision such as this, even if she disagrees with it, and even if, formally under the practice direction, it is not binding.

10. I therefore think that there is a public interest in this appeal continuing, and that it is not academic because the issue here will affect other cases. For those reasons, I am very narrowly persuaded, given the strength of the legal arguments in support of the appeal, and its potential effect upon other cases, that I should grant the extension of time to the Secretary of State and that I should give permission to appeal. However, the grant of permission to appeal, as I indicated in the course of argument, is subject to the condition that the Secretary of State must in any event undertake to pay the reasonable costs of the respondent’s resisting this appeal, to be assessed if not agreed. I have found the recent evidence useful and I will therefore grant the application for an extension of time for submitting the evidence.

11. Before I ask for submissions about the costs of this hearing, I would ask those in court today to draw this judgment to the attention of the Secretary of State. I do not know whether the reason, or part of the reason, for the failures in this case is an unacknowledged problem with resources, but it does seem to me that those instructing those in court today should consider whether they can ensure that the senior Home Office presenting officer dealing with an important case in the UT, and their lawyers when lawyers are instructed, understand the importance of the time limit for applying to the UT for permission to appeal; and that in any case in which they apply for an extension of time for permission to appeal from the UT, they ensure that they understand whether or not the UT has refused the extension of time, because that has such important implications for the time limits to appealing to this court; and, unless it is absolutely clear that the UT has granted an extension of time, they take counsel's advice on the meaning of the order of the tribunal. Those advising the Secretary of State must independently take responsibility for considering whether any application for permission to appeal to this court has been made in time and, if necessary, take counsel's advice on that question. If there is any doubt, they must apply for an extension of time, rather than leaving it to the COA to spot the problem. They must also provide this court, when they lodge the AN, and not weeks later, with a full and detailed explanation of every relevant part of the delay. I now understand for the first time today why it was that, even if those advising the Secretary of State were right about the time limit for applying to this court, there was a further unexplained delay of two days in making the application. Apparently, it was because the senior Home Office presenting officer did not understand the relevant part of the rules, which again is worrying. The final piece of advice that I wish those in court to bring to the attention of the Secretary of State is that if a deadline for filing evidence in this court, or indeed in any other court, is in peril for whatever reason, an application should be made for an extension of time before that deadline expires. (Brief submissions were heard on the cost of this day's hearing)

12. I order the Secretary of State to pay all the costs which counsel and solicitors for the respondent Mr Hakim-Hashemi have incurred so far in relation to the appeal to the Court of Appeal. I hope that those costs can be agreed, but if not, they will have to be taxed. (Order: Permission to appeal granted, costs of the appeal to be borne by the applicant Secretary of State. Permission for the admission of late evidence and permission to amend were also granted) Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: [email protected]