The Court of Appeal (CoA) overturned an Upper Tribunal (UT) decision based on the incorrect assumption that post offices are closed on Sundays.
Facts:
Mr. Mohammed Baparee, a national of Bangladesh, entered the UK on a two-year multi-visit visa with his wife and son on 3 September 2020. Due to the COVID-19 pandemic, the family was unable to return home as planned. In July 2021, Mr. Baparee was granted an “exceptional assurance” by the Home Office, allowing him to remain until 1 October 2021. In the meantime, the appellant’s wife successfully applied for leave to remain in the UK as an “Overseas Business Representative” (OBR) with their son as her dependent.
On 31 August 2021, before the end of the exceptional assurance period, the appellant applied to the Home Office for leave to remain as the spouse of a person granted leave to remain under the OBR Rules, a request which was refused by the Home Office in March 2022. Mr. Baparee applied for administrative review and the Home Office withdrew its decision in May 2022, admitting an error and stating the application would be reconsidered using the correct rules.
However, in January 2023, the Home Office redetermined the application and decided it was invalid for essentially the same reason, as his last permission to enter the UK was as a visitor, which prevented him from meeting the validity requirements required to switch to the OBR dependant route under Paragraph ROB 20.4.
The deadline for Mr. Baparee to submit an application for judicial review was January 3, 2023, and the decision of the UT was scheduled for 3 April 2023. Mr. Baparee asserted that he personally posted the claim form, along with a Certificate of Posting, to the UT from the Chelsea Royal
Hospital Post Office on Sunday, 26 March 2023, one week prior to the deadline. Having heard nothing from the UT, Mr. Baparee instructed solicitors in April 2024. On 26 April 2024, the solicitors sent a fresh application for judicial review, requesting an extension of time, as the UT had no record of the earlier 2023 submission. The solicitors later produced the Certificate of Posting dated 26 March 2023. The UT refused to admit the application, finding his evidence “very unsatisfactory” and expressing doubt that the 2023 claim was ever sent. Mr. Baparee then appealed the UT’s refusal of an extension to the CoA.
Decision:
The CoA allowed Mr. Baparee’s appeal against the UT’s refusal to grant an extension of time for his judicial review application. The Court ruled that the UT had committed a material error of law and procedural unfairness by rejecting the appellant’s evidence based on an unfounded factual assertion that post offices do not open on Sundays. This error had indeed formed an integral and decisive part of the UT’s reasoning. By assuming the post office was closed, the UT implicitly concluded the appellant’s evidence of posting his claim on 26 March 2023 was untrue. This fatally undermined the appellant’s credibility and reliability as a witness.
Implications:
This case highlights the importance of a strict adherence to judicial procedure, the limits of judicial power, and the right to a fair hearing in judicial review cases. It also underscores the need to obtain and retain conclusive evidence of posting, especially close to a deadline. While the appellant had a certificate, the dispute over its authenticity highlights the need for such tracking methods as Special Delivery or Recorded Delivery, which provide a clear audit trail of receipt, rather than basic proof of posting.
The 13-month delay in chasing the UT was a key factor against the person. Thus, it is important to chase up tribunals or the Court for acknowledgement of receipt, especially when filing close to the deadline. Any failure to do so, even if based on ignorance, will count heavily against the granting of any extensions.
