Arpitkumar Ashwinkumar Barot & Anor, R (on the application of) v The Secretary of State for the Home Department

LORD JUSTICE LEWIS: INTRODUCTION

1. This hearing arises out of a decision by the Upper Tribunal (Immigration and Asylum Chamber) dated 31 January 2025 refusing the appellants, Mr and Mrs Barot, permission to apply for judicial review of the respondent’s decision of 22 February 2024. That decision reviewed, and maintained, an earlier decision refusing the first appellant’s application for leave to remain in the United Kingdom as a graduate student. The reason for the refusal was that he had been convicted of an offence of arranging or facilitating the commission of a child sex offence. He had been sentenced to 17 months’ imprisonment for that offence which had been suspended for two years.

2. An application for judicial review made in the Upper Tribunal must be made promptly and, in any event, must be sent or delivered to the Upper Tribunal so that it is received no later three months after the date of the decision to which the application relates: see Rule 28 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the Rules”). Rule 5(3) provides a power for the Upper Tribunal to extend the time for complying with that rule.

3. In the present case, it is accepted that the application for judicial review should have been made promptly after the decision of 22 February 2024 and, in any event, within three months after that date. On that analysis, the application should have been sent, so as to be received by the Upper Tribunal, by no later than 22 May 2024. The application was not made until 29 May 2024. At an oral hearing, the Upper Tribunal refused to extend time and refused permission to apply for judicial review as the application was made out of time.

4. The appellants seek to appeal against the decision of 31 January 2025. An application for permission to appeal must be made within seven days of the decision of the Upper Tribunal where that decision was made at a hearing: see CPR 52.9(3)(a). The appellant’s notice was, therefore, due to be filed on or before 7 February 2025. It was filed on 10 February 2025. The appellants have applied for an extension of time for filing their appellant’s notice. The appellants also subsequently applied for permission to amend the grounds of appeal.

5. By an order dated 17 July 2025, Warby LJ ordered that the following be considered at an oral hearing: (1) The application for an extension of time for filing the appellant’s notice; (2) The application for permission to amend the grounds of appeal; (3) The application for permission to appeal against the decision of the Upper Tribunal dated 31 January 2025; and, if permission is granted; (4) The appeal against the decision refusing permission to apply for judicial review.

6. The respondent is neutral on the question of the application to amend the grounds of appeal. Mr Biggs, for the respondent, fairly accepted that there had been no prejudice. The respondent had been able to deal with the grounds in her response to the application for permission. We therefore grant permission to amend. As a result, there are, subject to the grant of an extension of time and permission to appeal, two grounds of appeal, namely, that the Upper Tribunal; (1) irrationally concluded that the appellants’ case was arguable but not particularly strong. On the facts, the first appellants’ offending cannot rationally have fallen within paragraphs 9.4.1(c) as being an offence that contributed to a widespread problem that causes serious harm to a community or society in general given the first appellant only ever interacted with a decoy who was an undercover police officer; (2) irrationally refused to admit the application for judicial review by looking to whether the claim he found to be arguable was also a strong one. THE FACTUAL BACKGROUND The Appellants

7. The appellants are nationals of India. The first appellant entered the United Kingdom in 2022 as a student. The second appellant’s leave to enter is dependent on her husband’s immigration status. The First Appellant’s Criminal Conviction

8. In January 2023, the first appellant was convicted of committing a criminal offence, namely arranging or facilitating sexual activity with a child contrary to section 14 of the Sexual Offences Act 2003 . The first appellant was aged 25 or 26 at the time of the commission of the offence. We have been provided with limited information about the circumstances of the offence. We were not provided with the sentencing remarks nor the pre-sentence report. There is a limited account of the circumstances contained in a letter from the first appellant’s solicitor.

9. It appears that the first appellant responded to an advertisement on a website advertising adult escorts. Arrangements could also be made for sex with underage children. There were a number of messages and two telephone calls from the appellant dealing with arrangements for him to have sex with a child. He agreed to pay £90 for oral sex, without a condom. At the arranged time, he turned up at the agreed venue with £100. In fact, he was met by undercover police officers who arrested him. The sentencing judge also noted that the first appellant had images on his mobile phone which, although not unlawful, also indicated an interest in school age girls. The judge considered that the offence was so serious that only a custodial sentence was appropriate. He imposed a sentence of imprisonment for 17 months. He suspended that sentence for two years subject to a requirement that the appellant undertake a programme as part of a 35 day rehabilitation requirement activity. The implication is that that programme was to address his sexual interest in young girls. We understand that a sexual harm prevention order may also have been imposed but, if so, we were not shown the terms of that order. The Application for Leave to Remain

10. On 9 November 2023, the first appellant applied for leave to remain in the United Kingdom as a graduate student. By letter dated 4 January 2024, the respondent refused that application. The decision noted that paragraph GR 2.1 in the relevant appendix to the Immigration Rules provided that an applicant must not fall for refusal under Part 9 Grounds of Refusal in the Immigration Rules. Paragraph 9.4.1(c) of Part 9 provides that: “An application for entry clearance permission to enter or permission to stay must be refused where the applicant: ..... (c) has committed a criminal offence, or offences, which caused serious harm.”

11. The decision letter continued: “On 23 January 2023 at Lewes Crown Court, you were convicted of arrange/facilitate commission offence of sexual activity cause/incite child to engage - penetration, and sentenced to suspended imprisonment 17 months wholly suspended 2 years – programme requirement – rehabilitation activity requirement. I am therefore satisfied that you have been convicted of a criminal offence which has caused serious harm. I therefore refuse your application under GR 2.1 of the Immigration Rules.”

12. The first appellant applied for an administrative review of that decision. By letter dated 22 February 2024, the applicant was informed that the review had been unsuccessful and the original decision refusing leave to remain had been maintained. The Application for Judicial Review

13. By an application filed on 29 May 2024, the appellants applied for permission to bring a claim for judicial review of the decision of 22 February 2024. That application was refused by an Upper Tribunal judge after consideration of the papers. The application was renewed at an oral hearing on 31 January 2025. The Upper Tribunal judge gave a decision, and reasons, for refusing to extend time and refusing permission. at the conclusion of the hearing on 31 January 2025. The reasons are also set out in an order dated 3 February 2025.

14. The Upper Tribunal noted that the application for permission was submitted 7 days out of time. It considered whether to extend time by applying the principles set out in Denton v TH White Ltd [2014] EWCA Civ 906 ; [2014] 1 WLR 3926 and R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633 ; [2015] 1 WLR 2472 . The Upper Tribunal held, first, that submitting an application seven days late was a serious and significant breach. Secondly, it found that there was no good reason for the delay. It did not accept that the first appellant’s original solicitors, and then the three or four solicitors he had consulted subsequently, had failed to advise him about the possibility of applying for judicial review. The Upper Tribunal did not accept, therefore, that the first appellant was unaware of the timescale for bringing judicial review proceedings and did not accept that there was a good reason for the failure to apply for judicial review within time. Neither of those findings are challenged in this appeal.

15. The Upper Tribunal then set out the following passage from Hysaj which deals with the extent to which the underlying merits of a claim are relevant to the decision on whether to extend time. Moore-Bick LJ, with whom the other members of the Court agreed, said at paragraph 46 that: “If applications for extensions of time are allowed to develop into disputes about the merits of the substantive appeal, they will occupy a great deal of time and lead to the parties' incurring substantial costs. In most cases the merits of the appeal will have little to do with whether it is appropriate to grant an extension of time. Only in those cases where the court can see without much investigation that the grounds of appeal are either very strong or very weak will the merits have a significant part to play when it comes to balancing the various factors that have to be considered at stage three of the process. In most cases the court should decline to embark on an investigation of the merits and firmly discourage argument directed to them. Here too a robust exercise of the jurisdiction in relation to costs is appropriate in order to discourage those who would otherwise seek to impress the court with the strength of their cases.”

16. In the light of that, the Upper Tribunal considered that time should not be extended, and so refused permission to apply for judicial review observing: “I heard submission on the substance of the application in order to assist me in resolving the question of whether to extend time. Paragraph 9.4.1(c) specifies that the offence must have “caused serious harm”. It could be argued that the applicant did not actually harm anyone, because he only ever interacted with an undercover police officer. On the other hand, it is well, established, and stated in the respondent’s guidance, that harm can be to society as a whole. In my view, the applicant’s case is arguable – as the respondent did not address in the decision the question of what harm the applicant caused in circumstances where this is no obvious; but his case is not a particularly strong one given that it is sufficient for there to be harm to the community or society in general and, on its face, the crime the applicant committed appears to be one that is on any view harmful to society. As the grounds are arguable but not strong, my view as to their merits does not lead me to conclude that it is appropriate to grant an extension of time.” The Application for Permission to Appeal

17. CPR 52.9(3)(a) provides that an application for permission to appeal a decision of the Upper Tribunal refusing permission to apply for judicial review must be made within seven days of the decision of the Upper Tribunal, where that decision was made at a hearing. The decision of the Upper Tribunal was made at the oral hearing on 31 January 2025. The appellants, therefore, had to appeal no later than on 7 February 2025. The appellant’s notice was filed on 10 February 2025.

18. Ms Saleha Khan, an associate at the firm of solicitors representing the appellants, has made a witness statement. In that statement, she confirms that the oral permission hearing took place on 31 January 2025 and that the Upper Tribunal refused permission to appeal to the Court of Appeal at that hearing. She confirms that the sealed order was received on 3 February 2025 and e-mailed to the appellants on 4 February 2025.

19. Ms Khan gives no evidence at all as to what, if any, contact took place between the appellants’ legal representatives and the appellants between 31 January 2025 and 4 February 2025. If contact did not take place, she does not say why.

20. Ms Khan says the appellants had questions about the hearing and about further procedures such as appealing to the Court of Appeal and fees. They wanted to discuss the matter in person with former counsel who had represented them at the oral hearing on 31 January 2025. Ms Khan says counsel was not available until 10 February 2025. I note that, by then, of course, the time for appealing would have passed. In the event, the appellants did attend the solicitors’ office on 10 February 2025 and an appellant’s notice was filed that day. THE APPLICATIONS TO EXTEND TIME AND FOR PERMISSION TO APPEAL

21. It is sensible to deal with the extension of time to file an appellant’s notice, and the application for permission to appeal together. Submissions

22. Mr Gajjar, with Mr Jamali, accepted that the appropriate test was that set out in Hysaj . In relation to the application for extension of time, he submitted that the appellant’s notice was served only one working day out of time. He did not advance any explanation for the delay. He submitted that having regard to all the circumstances of the case, in particular, the short period of delay, the absence of prejudice to the respondent, and the prejudice to the appellants if they were not able to seek permission to appeal, justified extending time.

23. On the application for permission to appeal, Mr Gajjar, submitted that the Upper Tribunal was wrong, or acted irrationally, by concluding that, while the appellants’ grounds were arguable they were not particularly strong. He submitted that, on the facts available before the Upper Tribunal, there was no basis for concluding that harm was caused. The only fact referred to was the fact that no child had been harmed as the first appellant was dealing with an undercover police officer. Consequently, the Upper Tribunal should have taken into account that the case was particularly strong when deciding whether to extend time to apply for judicial review.

24. Mr Biggs, for the respondent, submitted in respect of the application to extend time for the appellant’s notice, that there had been a serious breach. A short time limit of 7 days had been fixed and the appellants filed 3 days after that. There was no good reason given for that delay. The appellant’s legal representatives should have provided prompt advice and taken the necessary action to ensure that the appellants’ notice was filed in time. In terms of the overall circumstances, it was important to comply with procedural requirements and the failure to do so had required the use of court resources.

25. In relation to the application for permission to appeal, Mr Biggs submitted on the second ground, that it was not wrong for the Upper Tribunal to consider whether the claim was particularly strong. That was consistent with the observations in paragraph 46 of Hysaj . In relation to ground 1, Mr Biggs submitted that it was not irrational for the Upper Tribunal to conclude that the claim was not a particularly strong one. The nature of the offence and the length of the sentence indicated the seriousness of this offence. The relevant government guidance provides that an offence that has caused serious harm includes one that “had contributed to a widespread problem that causes serious harm, to the community or society in general”. That guidance had not been challenged nor had it been suggested it was wrong. In any event, the Court of Appeal had reached a similar conclusion in the context of the definition of foreign national criminals in section 117 D(2)(ii) of the Nationality, Immigration and Asylum Act 2002 in R (Mahmood) v Upper Tribunal (Immigration and Asylum Chamber) and another [2020] EWCA Civ 717 ; [2020] QB 1113 , at paragraph 41. Mr Biggs submitted that permission to extend time, and in any event, permission to appeal should be refused. Discussion The Correct Approach

26. It is appropriate, first, to identify the appropriate approach to an application to extend time to file an appellant’s notice pursuant to CPR 3.1(2)(a). That has been determined by this Court in Hysaj . Such an application is not an application for relief from sanctions under CPR 3.9. Applications for an extension of time are, however, to be approached in the same way, and with the same rigour. Consequently, the Court will have regard to the seriousness and significance of the failure to apply within time, the reasons for that failure and all the circumstances of the case: see R (Ammori) v Secretary of State for the Home Department [2025] EWCA Civ 1311 at paragraph 97.

27. A similar approach applies to applications to extend time under rule 5(3)(a) of the Rules in respect of matters relating to claims for judicial review in the Upper Tribunal. The Rules are a self-contained, free-standing procedural code for tribunals. It is sometimes the case, however, that the approach to powers conferred by the Rules is similar to that adopted in relation to similar powers under the CPR: see R (KA) v Secretary of State for the Home Department [2021] EWCA Civ 1040 ; [2021] 1 WLR 6018 at paragraph 43.

28. The Court of Appeal has applied the approach in Hysaj to cases involving the extensions of time for applying for a reconsideration of a refusal of permission to apply for judicial review pursuant to Rule 30(4) in R (Kigen) v Secretary of State for the Home Department [2015] EWCA Civ 1286 ; [2016] 1 WLR 723 . Moore-Bick LJ, with whom the other members of the Court agreed, considered that a refusal to extend time to apply for a reconsideration was analogous to a refusal to extend time for filing an appellant’s notice as, in each case, a refusal to extend time brought the proceedings to an end. Consequently, the three stage approach identified in Hysaj applied: see paragraph 20.

29. A decision by the Upper Tribunal to refuse an extension of time, and so to refuse permission to apply for judicial review, may not be final. If the decision is taken after consideration of the papers, the applicant may apply for a reconsideration of that decision at an oral hearing (see Rule 28(7) and (30(3) and (4)). If the decision is taken at an oral hearing, the applicant may appeal (see CPR 54.9). Nonetheless, in my judgment, the principles applicable to extensions of time identified in Hysaj apply to applications to extend time for making the claim for judicial review. Even if that were not the case, the Upper Tribunal would have to consider all the relevant circumstances, including the seriousness and significance of the failure to comply with the time limit, the reasons for the failure and all the circumstances: see R (AK) v Entry Clearance Officer (Islamabad) [2021] EWCA Civ 1038 at paragraphs 47 and 48 (the observations there being made in the context of applications under CPR 3.1(2)(a) to extend time for bringing a claim for judicial review). The Application to Extend Time to File an Appellant’s Notice

30. The failure to file the appellant’s notice within the time provided by the CPR is a serious and significant failure. The purpose of the time-limit governing the bringing of claims is to ensure that claims are brought promptly and in any event within three months after the date of the decision. It is recognised that there is a public interest in ensuring prompt action: see Ammori at paragraph 98. That policy is reflected in CPR 52.9(3) which fixes a short time period for the bringing of applications for permissions to appeal against the decisions of the Upper Tribunal where the decision is given at an oral hearing (of which the appellant will have had notice and where, usually, he will be represented or represent himself). The appeal must be made within 7 days of the decision. The appeal here was brought on day 10. Whilst the appellants sought to draw a distinction between working days and weekends, that distinction is not found in the provisions of the CPR itself.

31. Secondly, there is no good reason for the delay. The evidence filed on behalf of the appellants provides no explanation of what, if anything, was done between the oral hearing, and the giving of the decision, on 31 January 2025 and 4 February 2025. Thereafter, the explanation is that the appellants wanted to speak to counsel and he was unavailable until after the expiry of the time for filing an appellant’s notice. That does not provide any adequate reason for the failure to comply with the rules.

32. The third issue concerns the other circumstances. Mr Gajjar referred to the absence of prejudice. The public interest requires prompt action in the case of those seeking permission to appeal against decisions refusing permission to apply for judicial review. The fact that granting an extension of time would cause particular prejudice to others may be a factor against granting the extension. The absence of such particular prejudice is unlikely, of itself, to justify granting the extension (see AK at paragraph 53). He referred to the impact on the first appellant and, in particular, the second appellant. However, the fact is that the consequences result from their own, or their representatives, unexplained failure to comply with the relevant time-limit for appealing. Furthermore, that failure occurs in circumstances where the appellants knew the consequences of failing to comply with the rules governing time limits. The appeal itself was an appeal against a decision which refused an extension of time, and therefore, refused to grant permission to bring a claim precisely because of a failure to comply with the relevant time limits. The consequences for the appellants do not in this case justify granting an extension of time.

33. The principal submission made on behalf of the appellants is that that they did have a strong arguable case, or at least an arguable one. They say that the Upper Tribunal was wrong not to extend time and the appellants ought to have been given the opportunity to bring a claim for judicial review because of the underlying merits of that claim. It is, sensible, therefore, to consider that matter before reaching a final conclusion on the application to extend time for filing the appellant’s notice. The Application for Permission to Appeal

34. The application for permission to appeal challenges the decision to refuse to extend time and to refuse, therefore, to grant permission to apply for judicial review of the decision of 22 February 2024. The question is whether there is a realistic prospect that one or more of the grounds of appeal will succeed or whether there is some other compelling reason for allowing an appeal to proceed.

35. Rule 28 requires an application for judicial review to be made promptly and, in any event, sent or delivered to the Upper Tribunal so that it is received no less than three months after the date of the decision. The test is promptness. The appellants did not act promptly. They did not even act within three months of the decision. They made their application on 29 May 2024, over three months after the decision and outside the time limits fixed by the relevant rules. The Upper Tribunal found that there was no good reason for that failure. Applying the three-stage approach set out in Hysaj , the failure was serious and there was no good reason for the failure.

36. In relation to the third stage, consideration of the relevant circumstances, the Upper Tribunal correctly cited the passage from paragraph 46 of the judgment in Hysaj which recognised that, in most cases, the underlying merits of the case would have little bearing on whether it was appropriate to extend time and it was: “Only in those cases where “the court can see without much investigation that the grounds… are either very strong or very weak that the merits will have a significant part to play when it comes to balancing the various factors that have to be considered at stage three of the process.”

37. In the present case, the submission was that the offence committed by the claimant had not caused serious harm because no child was involved only an undercover police officer.

38. It is clear, however, that, in certain cases, the offence by its very nature, such as possession of firearms or weapons, may not have involved harm to any individual but may have involved harm to society. That is recognised in Mahmood in the context of the definition of foreign national criminals, where the Court of Appeal said at paragraph 41 that: “….. The criminal law is designed to prevent harm that may include psychological, emotional or economic harm. Nor is there good reason to suppose a statutory intent to limit the harm to an individual. Some crimes, for example, supplying class A drugs, money-laundering, possession of firearms, cybercrimes, perjury and perverting the course of public justice may cause societal harm. In most cases the nature of the harm will be apparent from the nature of the offence itself, the sentencing remarks or from victim statements…..”

39. The relevant government guidance on refusal of leave to remain in the United Kingdom on grounds of criminality reflects that approach to the interpretation of paragraph 9.4.1(c) of the Immigration Rules. It says that that: “An offence that has caused ‘serious harm’ means an offence that has caused serious physical or psychological harm to a victim or victims, or that has contributed to a widespread problem that causes serious harm to a community or to society generally. Where a person has been convicted of one or more violent, drug-related, racially-motivated or sexual offences, they will normally be considered to have been convicted of an offence that has caused serious harm.”

40. Against that background, and dealing with the first ground of appeal, the Upper Tribunal followed the approach set out in Hysaj in relation to the very limited extent to which it is appropriate to consider the merits of the underlying claim. It considered the claim was arguable because the decision letter did not expressly address the question of the harm caused. But, as the Upper Tribunal said “harm can be to society as a whole” and the appellants’ case was not particularly strong given that it was sufficient for there to be harm to society and “on its face the crime the applicant committed appears to be one that is on any general view harmful to society”. The Upper Tribunal concluded that the grounds, although arguable, were not particularly strong.

41. That was a conclusion that was open to the Upper Tribunal. It was not wrong and it did not act irrationally in reaching such a conclusion. The offence here was arranging or facilitating sexual activity with a child. The sentence imposed was 17 months’ imprisonment which demonstrates the seriousness of that offence. The first appellant was seeking sexual activity with a child. He exchanged a number of messages and calls in the process of pursuing that aim. He agreed the price that he was prepared to pay. He went to the agreed venue with sufficient money to pay for the sexual activity that he had arranged. Fortunately, he was on this occasion dealing with an undercover police officer, not a person providing children for sexual services. The fact that adults seek out sex with children helps sustain a market for the exploitation of children for sexual exploitation. It does, in the words of the guidance, contribute to “a widespread problem” that causes serious harm to society, namely the sexual exploitation of children.

42. The Upper Tribunal was, correctly, applying the approach set out in Hysaj . This was not one of those cases where the court could see without much investigation that the grounds of claim were either “very strong or very weak”. Consequently, the underlying merits of the claim did not provide a sufficient justification for extending time.

43. There is, therefore, no realistic prospect of ground 1 of the appeal succeeding. Similarly, ground 2 has no realistic prospect of succeeding. That ground is that the Upper Tribunal acted irrationally by “looking to whether the claim he found to be arguable was a strong one”. That, however, is what the Upper Tribunal, following the approach in Hysaj , had to do if the merits of the underlying claim were to be relevant to the decision of whether to extend time. CONCLUSION

44. I would, therefore, refuse to extend the time for the appellants to file their appellant’s notice. The failure to file within the time prescribed by CPR 52.9 was a serious and significant breach. That rule specifically provides for a short time-limit, measured in days, for bringing appeals in cases where permission for judicial review has been refused. Claims for judicial review must themselves be brought promptly. In that context, failure to comply with the time-limit is serious and significant. There is no adequate reason or explanation for that failure. There are no other circumstances sufficient to justify extending time. In those circumstances, the application for permission to appeal does not arise for consideration but, as I have said, I would have refused permission to appeal in any event as neither ground has any realistic prospect of success and there is no other compelling reason for an appeal to proceed. LORD JUSTICE ZACAROLI

45. I agree. LORD JUSTICE BAKER

46. I also agree.