1. An in-time application which does not comply with rule 21(4) in one or more ways is nevertheless a valid application which must be decided by the Upper Tribunal. If it had been intended otherwise, the UT Rules could easily have said so.
2. Where the Upper Tribunal receives an application which does not comply with rule 21(4)(e) because it is not accompanied with the grounds (whether or not the covering letter accompanying the application or the completed IAUT-1 form states that the grounds are attached or enclosed), an Upper Tribunal Lawyer (or the Tribunal) will write to the applicant (if his address has been supplied pursuant to rule 21(4)(a)) and (if represented) to his or her legal representative:
(i) stating that the grounds were not received with the application;
(ii) requiring (pursuant to rule 7(2)(b)) that the failure be remedied, in that the appellant must now submit the grounds within a specified number of working days beginning with the date of the letter; and
(ii) explaining that upon expiry of the deadline, the application will be placed before an Upper Tribunal Judge for a decision on the application on the material before the Upper Tribunal.
3. The Upper Tribunal Judge deciding an application for permission to appeal that is not supported by any grounds will be obliged to consider whether there are any grounds for granting permission, following the approach articulated at para [69] of AZ (error of law: jurisdiction; PTA practice) Iran [2018] UKUT 245 (IAC); namely, a ground:
‘… which has a strong prospect of success for the original appellant; or for the Secretary of State, where the ground relates to a decision which, if undisturbed, would breach the United Kingdom’s international treaty obligations; or (possibly) if the ground relates to an issue of general importance, which the Upper Tribunal needs to address’.
4. If the grounds (in their final form) were not in existence by the expiry of the relevant deadline in rule 21(3), it would be an abuse of process or akin to an abuse of process for an applicant and/or his legal representatives to submit an application within the relevant deadline in the knowledge that rule 21(4)(e) cannot be complied with. The proper and correct approach in such cases is to make the application when it can be submitted with the grounds and, if necessary, request an extension of time.
5. The Upper Tribunal’s approach, where it receives an application that does not comply with rule 21(4)(a), is likely to be as follows: An Upper Tribunal Lawyer (or the Tribunal) will write to the applicant’s representative:
(i) stating that the application does not state the appellant’s name and address contrary to rule 21(4)(a); and
(ii) requiring (pursuant to rule 7(2)(b)) that the failure be remedied by the legal representative providing, within a (usually short) number of working days, either:
(a) the appellant’s name and address; or
(b) written confirmation that, pursuant to the duty of the representative under rule 2(4) to help the Upper Tribunal to further the overriding objective and to co-operate with the Upper Tribunal generally, the representative has explained to the appellant that failure to provide the Upper Tribunal with his or her name and address means that he or she is at risk of not receiving notifications from the Upper Tribunal concerning the appeal.
Citations:
[2022] UKUT 132 (IAC)
Links:
Jurisdiction:
England and Wales
Immigration
Updated: 15 September 2022; Ref: scu.680533
