RELIEF FROM SANCTIONS GRANTED AFTER SECRETARY OF STATE RELIED UPON AN OUTDATED REFERENCE IN THE WHITE BOOK
In AM (Pakistan) -v- Secretary of State for the Home Department [2017] EWCA Civ 180 the Court of Appeal granted relief after an appeal was filed late. The appellant had relied upon an out of date commentary in the white book. (It is not clear whether this was referring to an out of date white book or whether events had overtaken the original commentary.) In any event the case highlights the need to read the latest edition (and the supplements).
THE CASE
The Secretary of State appealed an order that the five respondents be given leave to remain in the UK. The appeal was lodged out of time. Permission to appeal was needed.
THE JUDGMENT ON THE ISSUE OF PERMISSION TO APPEAL OUT OF TIME
“Preliminary point
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A preliminary issue which arises is whether the Secretary of State should be allowed to pursue the appeal at all. The basis for contending that she should not is that although the UT judge gave permission to appeal, the Secretary of State lodged her appeal five days out of time, having been misled by an out of date commentary in the White Book. She ought to have lodged it within 28 days of the permission decision being sent but erroneously thought that it was within 28 days of it being received, even though it was accepted at the hearing the two dates were the same. The result was that it was five days, and three working days, late. The Secretary of State requires an extension of time for the appeal to be valid. The applicants submit that time should not be extended.
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We have considered the relevant authorities including Mitchell v News Group Newspapers Ltd. [2013] EWCA Civ 1537; [2014] 1 WLR 795;
Denton v TH White Ltd. [2014] EWCA Civ 906; [2014]2 WLR 3926 R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633; [2015] 1 WLR 2472. These cases require the court to consider the following factors in three stages: first, the seriousness and significance of the failure to comply; second, the reasons for that failure; and third, to evaluate all the circumstances of the case in order to deal justly with the application. As the court pointed out in Hysaj, para.42, there is no special rule for public authorities and no special leniency is shown to public bodies. -
I have no doubt that the court ought to extend time in the particular circumstances. The breach is relatively minor; I would not describe it as trivial, but it is not very significant. Second, although there is no excuse for failing to comply with the rule, and it was not suggested that reliance on an outdated text provided one, the explanation does at least show that this was not a cavalier disregard of the provisions. Third, when taken in the context of a relatively minor breach, the circumstances in my view make it just to allow the extension of time. There is no prejudice to the applicants in terms of their ability to respond to the appeal; and the case raised a point of real importance in public law. In so far as it is said that this consideration is undermined by the fact that MA (Pakistan) v Upper Tribunal [2016] EWCA Civ 705 has since been determined and has for the time being resolved the issues raised in the appeal, it has done so in a way which makes it plain that the merits of the first ground of appeal at least are very strong indeed, and that is a factor in favour of granting the extension.”