The Court of Appeal (CoA) has reiterated that speed is of the essence when filing a judicial review claim and that merit will not save a claim when the person filing fails to meet the strict procedural deadlines.
Background:
Mr. and Mrs. Barot are Indian nationals. Mr. Barot originally entered the UK in 2022 on a student visa, and his wife’s leave to remain (LTR) was dependent on his status. In January 2023, Mr. Barot was convicted of arranging, or facilitating, sexual activity with a child under the Sexual Offences Act (SOA) 2003. He had responded to an online advertisement and arranged to pay for sexual services with a minor, but the individuals he met at the agreed venue were actually undercover police officers. He was sentenced to 17 months’ imprisonment, suspended for two years, provided that he completed a rehabilitation programme.
In November 2023, Mr. Barot applied for LTR as a graduate student, but the Home Office refused the application in early 2024. The refusal was based on Paragraph 9.4.1(c) of the Immigration Rules, which mandates that an application must be denied if the applicant has committed a criminal offence that caused serious harm. The Home Office maintained this decision after an administrative review.
The Barots then sought to challenge this through a judicial review in the Upper Tribunal (UT); however, their application was filed seven days after the three-month deadline had expired. The UT refused to extend the time limit or grant permission for the judicial review, concluding that the seven-day delay amounted to a serious breach without a good reason. The Barots appealed to the CoA
Decision:
The CoA dismissed the application for permission to appeal, confirming that strict compliance with procedural time limits is of paramount importance.
The Court applied the Hysaj test, which dictates that missing a deadline in a judicial review context is a “serious and significant” breach and that the Barots offered no good reason for the delay. The Barots had claimed that they were waiting for a specific barrister to become available before filing their appeal. The Court, however, ruled that “waiting for counsel” is never a good reason for missing a deadline.
The Barots maintained that the Home Office was not “hurt” by a three-day delay, while the Court reasoned that the absence of prejudice to the other side does not, in and of itself, justify breaking court rules.
The most significant part of the Court’s reasoning addressed the Barots’ argument that, because Mr. Barot met an undercover police officer instead of a child, no “serious harm” had actually occurred. The Court rejected this for several reasons.
First, the Court reasoned that the notion of “serious harm” under Paragraph 9.4.1(c) of the Immigration Rules is not limited to physical or psychological injury to a specific victim but also includes societal harm. By the very attempt to arrange such an activity, the appellant contributed to a wider societal problem, thereby constituting a threat of serious harm to the community at large.
Implications:
The most critical implication of this case is the Court’s confirmation that “serious harm” does not require a physical victim. “Serious harm” under Paragraph 9.4.1(c) of the Immigration Rules also includes societal harm through contributing to a “widespread problem”.
If a criminal court imposes a significant sentence, even if suspended, the immigration authorities can use that length as evidence that the offence was “serious,” regardless of whether the sentence was actually served.
This case also sends a stern warning to legal representatives about missing deadlines. You cannot blame a delay on a specific barrister being unavailable. Moreover, this decision reinforces the Hysaj principles, making it harder to use the “merits” of a case to justify a late filing. If you miss a deadline, the Court will only look at the strengths of your case if it is exceptionally strong.
