Lord ordinary finds Upper Tribunal’s refusal to admit late application for appeal did not engage finality exception provisions

About this case:

• Citation:
  [2025] CSOH 65
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Sandison

Petitioner Mohamed Elkabany claimed asylum on the basis that he was at risk of political persecution or alternatively was entitled to humanitarian protection. He argued that, as his application was presented out of time, the question before the UT was one of the validity of his application, and thus it was rendered open to challenge as an exception to the finality of decisions rule outlined in section 11A(2) and (3) of the Act.

The petition was considered by Lord Sandison in the Outer House of the Court of Session. Winter, advocate, appeared for the petitioner and Maciver, advocate, for the respondent, the Advocate General for Scotland acting on behalf of the Secretary of State.

Straightforward administrative decision

The petitioner claimed that he had been detained by Egyptian police in September 2019 and falsely accused of being part of a proscribed organisation after an anti-government demonstration took place outside a café he was in. After being detained for over seven months, he was released on bail with the expectation that he would become a police informer, but instead his family made arrangements to smuggle him out of the country by boat. After arriving in the UK, the petitioner claimed asylum in June 2020, but the Home Office refused his claim.

After a hearing in the First-tier Tribunal, the judge placed little weight on the expert report instructed by the petitioner due to concerns about his qualifications or expertise, and separately formed doubts about the petitioner’s own credibility. The petitioner sought leave to appeal based on the adequacy of the judge’s reasoning, and one claim based on his case being one where the Home Office had a duty to verify his documentary evidence.

The decision of the Upper Tribunal the petitioner sought to challenge was a decision of the UT on 29 July 2024 not to admit a late application for permission to appeal the FtT’s decision. The UT judge took the view that the petitioner’s grounds of appeal sought to reargue the case and disclosed no arguable error of law.

For the petitioner it was submitted that the terms of section 11A(4)(a) of the 2007 Act were engaged to exempt the application from the finality provisions of section 11A(2) and (3). No prejudice to the respondent would be caused by admitting the application, and the petitioner himself was blameless in the matter, the fault lying with his solicitors.

In a brief response, counsel for the respondent submitted that what was now complained of was a straightforward administrative decision of the UT. The Tribunal had simply refused to admit the application on account of its lateness.

Absurd outcome

Lord Sandison, in his decision, began by assessing the statutory provisions: “Section 11A of the 2007 Act is specifically directed at rendering decisions of the Upper Tribunal about decisions to appeal immune from review save in the extremely specific and exceptional circumstances which it instances. The language of sections 11A(2) and (3) could scarcely be more emphatic - such decisions are to be ‘final, and not liable to be questioned or set aside in any other court’.”

He continued: “The Tribunal is not to be regarded as having exceeded its powers by reason of any error (whether of fact or law) made in reaching its decision, howsoever plain that error may be, and the supervisory jurisdiction ‘does not extend to, and no application or petition for judicial review may be made or brought’ in relation to such a decision. One cannot evade the bar on review by maintaining that the decision complained of is only a ‘purported’ such decision.”

Considering the merit of the petitioner’s arguments, Lord Sandison said: “If the petitioner’s approach to statutory interpretation is correct, decisions of the Upper Tribunal refusing to extend the prescribed time to seek permission to appeal to it from the First-tier Tribunal are amenable to judicial review despite decisions refusing permission to appeal to it on more substantive grounds not being in general so amenable, for no particular reason in principle that can be identified. Moreover, judicial review of decisions of the Upper Tribunal refusing to extend time are to be granted permission if the relevant petition meets the most basic test of disclosing a real prospect of success.”

He concluded: “That would be an absurd outcome which could only be justified by the clearest statutory wording, which simply does not exist. Rather, the statutory language in the 2007 Act and the 2008 Rules makes it plain, for the reasons set out above, that an application for permission to appeal to the Upper Tribunal out of time which was refused remains a valid application to the Tribunal under section 11(4)(b); the Tribunal has simply refused to admit it for further consideration. An analogy can be drawn with the example of a petition to this court for judicial review being refused permission to proceed. Such a petition does not metamorphose into an invalid petition.”

Lord Sandison therefore refused the petition on the ground of incompetence.