The Court of Appeal has held that where a notice of decision fails to advise an applicant of their right of appeal a refusal in breach of the Immigration (Notices) Regulations 2003, the time limit for appealing does not start to run. The consequence of that in this case, R (Chowdhury) v The First-tier Tribunal (Immigration And Asylum Chamber) & Anor [2024] EWCA Civ 1380, is that the respondent has been able to appeal a 2016 decision almost six years after it was made. The First-tier Tribunal and Home Secretary were the appellants here, although as usual only the Home Secretary took an active role in the case.
Background
The respondent, Mr Chowdhury, entered the UK as a student in 2008 and extended his student leave three times, with the last grant of leave remaining valid until 25 May 2016. Just before then, Mr Chowdhury applied for a residence card as an extended family member of his great-uncle, an Italian national.
A notice of decision dated 30 November 2016 was sent to Mr Chowdhury, refusing to issue him with a residence card as an extended family member of an EU national under the Immigration (European Economic Area) Regulations 2006. The notice expressly told him he had no right to appeal the decision.
At the time of the decision, the Upper Tribunal had held that there was no right of appeal for extended family members refused a residence card in Sala (EFMs: Right of Appeal: Albania) [2016] UKUT 411 (IAC). The Court of Appeal overturned this in October 2017 in Khan v Secretary of State for the Home Department [2017] EWCA Civ 1755.
The decision in Khan meant that the notice sent to Mr Chowdhury had failed to tell him that he had a right of appeal, in breach of regulation 5(3)(a) of the Immigration (Notices) Regulations 2003. The Home Secretary did not send a notice correcting the position and the Court of Appeal was told that it was not the practice of the Home Office to do so.
Mr Chowdhury lodged his appeal against the decision of 30 November 2016 on 13 November 2022. The First-tier Tribunal concluded that the appeal was valid as it was against an appealable decision, but declined to extend the time limit, stating that there was no explanation for the delay since the decision in Khan.
That decision was subject to judicial review and the Upper Tribunal allowed the claim, concluding that:
It is now accepted by the Secretary of State that the decision was an EEA decision which carried a right of appeal. But the authorities I have considered above make it quite clear that time did not start to run from the date of the appealable decision: it was only a notice of decision which had that effect. The notice of decision in this case did not comply with the Notices Regulations in several respects and could not cause time to start to run for the purpose of an appeal. The Secretary of State might have made a valid decision but she issued no valid notice which caused time to run.
The Home Secretary appealed that decision.
Court of Appeal
The Home Secretary submitted that the time limit ran from the date the notice of decision was sent, even where there was non-compliance with the 2003 Regulations. The Home Secretary’s position was that the appeal should be allowed and the First-tier Tribunal should re-consider whether or not the decision notice was invalid. It was argued that, in taking the validity decision, the tribunal should have considered factors including that “there were no materially adverse consequences for Mr Chowdhury in not being given that information as his appeal was doomed to fail in any event” and “there would be procedurally adverse or other consequences in finding that the notice of decision to be invalid”.
Mr Chowdhury’s position was that “a notice of decision complying with the 2003 Regulations had not been sent to Mr Chowdhury. The time within which an appeal had to be brought had not therefore begun to run. Mr Chowdhury could waive the non-compliance and lodge a notice of appeal (which he did in November 2022 once he learnt that he had a right of appeal).”
The Court of Appeal did not accept the Home Secretary’s arguments that the time limit could start running from a defective notice where the appeal would be bound to fail or that adverse procedural consequences were involved. The court said “The simple question in this case is whether the individual was sent a notice of decision which informed him of his right to appeal against the decision. If not, the time within which an appeal against must be brought will not have started to run and the individual can appeal against that decision.”
As the notice of decision did not comply with the 2003 Regulations the time limit to appeal had not started to run and Mr Chowdhury was entitled to appeal in November 2022.
Conclusion
There are presumably many more people in Mr Chowdhury’s position, namely who had an application for a residence card as an extended family member rejected between Sala (in August 2016) and Khan (in October 2017) and who were told by the Home Office that they did not have a right of appeal when they did have one. Some of those people may still be here and so further appeals may be possible, although I can’t imagine that there would be very many.
