UTIAC The Court of Appeal decided in the present case that a failure by a party to comply with the provisions of the Procedure Rules is an ‘error of procedure’ within the meaning of rule 59, and that rule therefore operates to preserve the validity of steps taken in the proceedings thereafter, unless the Tribunal exercises the discretion therein to order to the contrary.
The power may be exercised even when the point has not been raised by the appellant.
In the exercise of its discretion in relation to rule 23, the Tribunal must consider the nature and extent of the breach and this will entail a consideration of all material factors. These are likely to include:
a. The length of the delay in the context of the strict time-limits under the Rules for filing and serving grounds of appeal, (19 days in a case when the time for appealing was 5 days).
b. The Secretary of State’s action in misinforming the Upper Tribunal that she had complied with the requirements of rule 22(5)(a) as to the date when service had been effected.
c. The Secretary of State’s failure to draw to the attention of the Tribunal her failure to have complied with rule 23(5)(b).
d. Prejudice suffered by the applicant such as the effect of being notified by the Tribunal that the respondent is seeking permission to appeal when the appellant has not yet received the determination, the loss of the opportunity to protest that the Secretary of State’s application is out of time and the effect of the passage of time.
e. Repugnance arising from the Secretary of State’s pursuing for any prolonged period her challenge to the decision of the Tribunal without the successful party being aware of that decision.
f. The merits of the substantive application.
g. The fact that the failure does not prevent a fair hearing is not decisive.
Gleeson, Southern SIJJ
[2010] UKUT 302 (IAC)
Bailii
England and Wales
Immigration
Updated: 10 November 2021; Ref: scu.421573