R (on the application of Chowdhury) (Respondent) v Secretary of State for the Home Department (Appellant)

Case summary

Case ID

UKSC/2024/1006

Parties

Appellant(s)

Secretary of State for the Home Department

Respondent(s)

Zakoan Ahmed Chowdhury

First Tier Tribunal (IAC)

Issue

Did the Court of Appeal err in finding that whether an appeal to the First-tier Tribunal is bound to fail is irrelevant to whether the timing of the appeal complies with the 14-day time limit for appealing a decision of the Secretary of State for the Home Department in circumstances where the Secretary of State’s notice of decision failed to advise the appellant of their right of appeal?

Facts

Mr Chowdhury is a national of Bangladesh born in 1983. He entered the UK as a student in 2008. In 2016, Mr Chowdhury made two applications to the Secretary of State for the Home Department (SSHD): first, he applied for a residence card on the basis that he was an extended family member of his great-uncle who was an Italian national; second, he applied for leave to remain on human rights grounds. He subsequently varied the second application to one for indefinite leave to remain. On 30 November 2016, the SSHD refused the residence card application. The refusal decision stated that, in accordance with the Upper Tribunal’s decision in Sala v SSHD [2016] UKUT 411, Mr Chowdhury did not have a right of appeal against the refusal to grant him a residence card. In November 2017, Sala was reversed by the Court of Appeal in Khan v SSHD [2017] EWCA Civ 1755. Following Khan, the SSHD did not inform Mr Chowdhury that he did in fact have a right of appeal. On 1 July 2019, Mr Chowdhury’s application for indefinite leave to remain was refused. He appealed to the First-tier Tribunal, then to the Upper Tribunal and finally to the High Court by way of judicial review. Permission for the judicial review was refused in the High Court and the Court of Appeal. At no point during the indefinite leave to remain proceedings did Mr Chowdhury seek to appeal or otherwise challenge the residence card refusal of 30 November 2016. On 13 November 2022, Mr Chowdhury filed a notice of appeal with the First-tier Tribunal seeking to appeal the SSHD’s decision refusing his residence card. On 20 December 2022, the First-tier Tribunal held that Mr Chowdhury’s appeal was out of time by six years and declined to extend time. The Upper Tribunal allowed Mr Chowdhury’s judicial review claim and held that the time limit for bringing an appeal had not begun to run as Mr Chowdhury had not been sent a legally compliant notice of refusal advising him of his right of appeal. The Court of Appeal dismissed the SSHD’s appeal. The SSHD now appeals to the Supreme Court.

Date of issue

10 December 2024

Case origin

PTA

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