After an immigration appeal is lodged, the Tribunal will issue directions to both parties, the appellant and the respondent, namely the Home Office. Firstly, the Tribunal will instruct the Home Office to provide its appeal bundle by a specified date. After that, the Tribunal will set a deadline for the appellant to submit their evidence. At times, these deadlines are missed – such as when the appellant needs more time to prepare their evidence.
Written by Lorraine Hon, Solicitor
Historically, the Tribunal is rather lenient and will accept late evidence as the evidence might be important to the appellant and the consequences of not admitting them can result in harshness for the appellant. However, the following case shows that the Tribunal may be moving towards greater procedural rigour.
Background of the Dawrani v SSHD case
Recently, the Upper Tribunal (Immigration and Asylum Chamber) ruled on a case and dismissed the appellant’s appeal against the First-tier Tribunal’s decision refusing her entry clearance application, holding that the First-tier Tribunal judge did not err in law by excluding late evidence.
The appellant is an Afghan national residing in Iran who sought entry clearance to join her husband in the UK on Article 8 human rights grounds. The application was refused and the appellant lodged an in-time appeal. However, the appellant failed to comply with the Tribunal’s directions five times including submitting evidence late without an application for extension of time for three times. Some of which were served very shortly before the hearing. The First-tier Tribunal judge refused to admit the late evidence which was provided at the very last opportunity and dismissed the appeal. The appellant appealed to the Upper Tribunal challenging the exclusion of evidence and the proportionality assessment.
Decision – Dawrani v SSHD
The Upper Tribunal held that the First-tier Tribunal’s refusal to admit the late evidence was a lawful exercise of discretion. The procedural breaches were serious and significant and there were no good reasons for them. Explanations provided such as the appellant running out of funds and the legal representatives acting pro bono did not justify the procedural shortcomings. Neither did the argument that the evidence was important to the appellant, and the consequences of not admitting them could result in harshness for the appellant.
The Tribunal considered whether it would be fair to the Respondent as the Respondent had a right to adequate notice. It held that this was a lawful exercise of discretionary judgement given the troubled procedural backdrop and the need to discourage poor preparation.
Therefore, appellants should ensure that evidence is submitted on time. This case underscores the importance of procedural rigour in immigration appeals – appellants should not expect that evidence will be admitted merely because of its importance.
In the event that evidence is submitted late, appellants should make an application to the court requesting an extension of time and providing an explanation why the evidence is submitted late. Appellants are also advised to seek legal advice. Appellants should not expect that the evidence would be admitted merely because of its importance.
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