Category Archives: Court of Appeal

High Court Appeal in Zambian Adoption Case Withdrawn

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High Court Appeal in Zambian Adoption Case Withdrawn

Arfan Khan appeared for the successful Claimant at trial and the successful Respondent on appeal in a Zambian adoption dispute, instructed by CV Brooks Solicitors.

On 30 July 2025, following a 2.5-day trial, Deputy Master Jefferis entered judgment for the Claimant. The Deputy Master declined to give effect to the Zambian judgment and held that the Claimant had been lawfully adopted by the deceased. He further determined that the Defendant was not entitled to letters of administration, ordered that the Zambian grant should not be resealed in England and Wales, and awarded costs against the Defendant. Repeated requests for adjournment were refused.

The Appellant subsequently instructed counsel and filed a notice of appeal seeking permission to challenge the trial judgment on complex grounds, including alleged errors of law and fact and a proposed challenge to the fairness of the trial. The Appellant applied for a stay of execution, which was refused on the papers by Mr Justice Mellor. A renewed stay application was made, and an extension of time to file the appeal bundle was requested. The extension request was unopposed.

Following submissions by Arfan Khan on both the renewed stay application and the merits of the proposed appeal, the Appellant’s counsel elected not to pursue the stay at the oral hearing. Mr Justice Rajah dismissed the renewed stay application and ordered the Appellant to pay the Respondent’s costs. The Appellant subsequently withdrew the appeal, which Mr Justice Rajah formally dismissed.

Arfan Khan has acted as lead or sole counsel in close to over 70 reported cases, including landmark decisions in the Court of Appeal and the UK Supreme Court, demonstrating the strength of his practice in Chancery, Commercial, and Public Law.

Press coverage and the Master’s judgments can be accessed via the following links:

Note of the Trial Judgment

  • Master’s Interlocutory Decisions:

Adjournment Decision 1

Adjournment decision 2

Court of Appeal grants permission to appeal in novel appeal from the EAT: Arfan Khan appeared for the successful Appellant

Court of Appeal, Guidance from the Court of Appeal

Introduction

Arfan Khan, instructed by DCK Solicitors, obtained permission to appeal to the Court of Appeal in a case from the Employment Appeal Tribunal (EAT), involving a novel legal issue under Rule 37 (5) of the Employment Appeal Tribunal Rules 1993 (the EAT Rules). Thereafter, the appeal settled.

The factual context

The issue arose from the EAT’s refusal to extend time to appeal where the Appellant’s solicitors had failed to file two documents — the ET3 and the grounds of resistance — when lodging the appeal. The Appellant’s solicitors lodged an appeal on 18 September 2021, but they failed to include the ET3 form and grounds of resistance. Although the solicitors inquired about the appeal’s progress, the omission was only identified by the Employment Appeal Tribunal on 23 April 2022, prompting the submission of the missing documents two days later. The EAT Registrar ruled the appeal to be 217 days late and refused an extension. This decision was upheld by an EAT judge, where the Appellant was represented by different counsel.

The appeal to the Court of Appeal

The Appellant appealed to the Court of Appeal, contending that the EAT applied the wrong test when determining whether to grant the Appellant an extension of time to file the complete appeal notice. The Appellant contended that EAT had erred in law by misapplying Rule 37 (5), and in the exercise of its discretion, where the delay was minor and rectified without prejudice to the Respondent. At the time of filing, there was no authority directly addressing this issue in a case involving a solicitor’s error.

After the Appellant filed written submissions, the Court of Appeal handed down two decisions — Davies v BMW (UK) Manufacturing Ltd [2025] EWCA Civ 356 and Melki v Bouygues [2025] EWCA Civ 585 — both of which supported the Appellant’s original analysis advanced by Arfan Khan on appeal to the Court of Appeal. The Appellant made further submissions. Lady Justice Laing directed amended grounds of appeal on 20/5/2025, and these were filed on 21/5/2025. Insofar as relevant, these included the following grounds and arguments:

1.  The EAT failed to interpret Rule 37 (5) of the EAT rules correctly and consistently with legislative intent. The Appellant argued that rule 37 (5) did not require a satisfactory explanation for the error, and the common law authorities to the contrary did not have to be followed in light of higher authority concerning statutory construction. The Appellant relied on the observations of Lady Justice Laing in Melki, where the Court of Appeal questioned the imposition of a test requiring a satisfactory explanation not grounded in the statutory language in Rule 37 (5) (paragraphs [56], [58], and [59]).

2. The EAT’s refusal to extend time was, in any event, a wrongful exercise of discretion. The procedural error was inadvertent, swiftly rectified upon notification, and had not caused any material prejudice to the Respondent. The Appellant relied on the reasoning of Lord Justice Underhill in Melki at paragraph [64], who drew a clear distinction between procedural failures arising from deliberate or reckless disregard of the rules (or pursuit of a tactical advantage) and those resulting from mere inadvertence. The latter, on the reasoning of Lord Justice Underhill, may be sufficient to justify the grant of an extension of time.

The Respondent resisted the application for permission to appeal and amend the grounds through counsel. However, Lady Justice Laing granted both permission to appeal and permission to amend the grounds of appeal. In doing so, she noted the absence of authority on the application of amended Rule 37 in circumstances where, as here, the appellant was legally represented at the time the notice of appeal was filed.

 

 

 

Court of Appeal clarifies the legal test for appeal against a contempt of court sentence in a family case

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The Court of Appeal, Lord Justice Baker, with whom Lady Justice Andrews, and Lord Justice Nugee agreed, clarified the legal test for an appeal against a contempt of court sentence in a family case.

The appeal involved an immediate custodial sentence of six months for contempt of Court. The sentence was imposed following multiple alleged breaches of Court orders intended to secure the return of children from Iran to the UK, including one alleged breach where the Appellant expressed an intent not to comply with the Court order.

On the Respondent’s case, she visited the Appellant in Iran as he was spending more time in Iran following the death of his mother. During her visit, the Appellant sought to register his marriage with the Respondent in Iran. Fearing the consequences for her and the children, she decided to leave Iran with the children. On the Appellant’s case, she was required to obtain the Appellant’s consent before she could leave with the children. As she failed to obtain the same, she was apprehended attempting to leave Iran with the children without the Appellant’s consent: she then abandoned the children at Tehran Airport, so that the Appellant was forced to take custody of them by default.

Upon her return to the UK, the Respondent commenced proceedings for the return of the children to the UK. The children were made wards of the Court. A series of orders were made intended to effect the return of the children to the UK. Amongst other orders, the Court orders made provision for the Appellant to sign a notarised agreement consenting to the return of the children to the UK for a Court hearing. It was alleged that the Appellant failed to comply and one occasion indicated that he had no intention of complying with the Court order.

The Respondent commenced contempt of Court proceedings for various breaches of the Court orders. Mr Justice MacDonald found the breaches proven and imposed a six month custodial sentence for the relevant breaches.

On appeal, the Court of Appeal considered the relevant principles for reversing a contempt of court sanction in family proceedings, and determined whether the reasoning of their Lordships in the civil case of Lovett & Anor v Wigon Borough Council [2022] EWCA Civ 1631 applied to contempt of court in family proceedings. In that case, Birss LJ, with whom Stuart-Smith LJ and Edis LJ agreed, set out in a series of cases detailed guidance about the sentencing for breaches of orders under Part 1 of the Anti-Social Behaviour, Crime and Policing Act 2014. At paragraph 47 in Lovett, their Lordships condensed complex sentencing guidelines to three levels of culpability, namely:

“(A) high culpability – very serious breach or persistent serious breaches, (B) deliberate breach falling between (A) and (C); and (C) lower culpability – minor breach or breaches”.

At [56], their Lordships held:

“It cannot be over emphasised that the task of sentencing a defendant for breach of orders in contempt of court is a multifactorial exercise of judgment based on the particular facts and circumstances of the case before the judge. Any sentence must be just and proportionate.”

The Court of Appeal applied this reasoning and dismissed the appeal holding that the judge carried out a “multifactorial exercise of judgment based on the particular facts and the circumstances” and the sentence he passed was “just and proportionate”.

Arfan Khan acted for the Appellant instructed by CV Brooks Solicitors.

The judgment can be accessed here: https://caselaw.nationalarchives.gov.uk/ewca/civ/2023/532

Allami v Fakher [2023] EWCA Civ 532

Employment Appeal Tribunal orders all contested grounds of appeal to proceed to a full hearing

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Employment Appeal Tribunal orders all contested Grounds of Appeal to proceed to a full hearing

At a one-day in person contested hearing in the Employment Appeal Tribunal (“the EAT”), HHJ Auerbach ordered all Grounds of Appeal to proceed to a full hearing. The appeal has a complex contested history. It involves claims of sex and race discrimination, victimisation, and harassment.

Arfan Khan led for the Appellant.

The judge ordered a transcript of judgment to be produced. That approved judgment can be accessed through the following link:

Approved Employment Appeal Tribunal Judgment

 

 

Arfan Khan leads against HMRC in a first time tax appeal

Appeal, Chancery Division, Chancery Litigation, Commercial and Chancery, Commercial and Chancery litigation, Commercial and International Law, Court of Appeal, Leading Chancery Barrister, Leading Counsel, Tax and Chancery Chamber,

Arfan Khan led Mr Joseph Howard in the Court of Appeal on a first time tax appeal of general public importance.

The Appellant is an Italian company. It provides containers and logistics services across Europe. The Appellant arranged the transport of goods for a customer, a Romanian company, GBT. This included a quantity of wine, which was seized by UK Border Force on the basis that excise duty had not been paid.

On 12 May 2015, HMRC issued an assessment to excise duty in respect to the seized wine to GBT. On 17 December 2015, HMRC issued the appellant with a reduced penalty assessment calculated on the basis that the Appellant’s conduct was not deliberate.

The Appellant appealed to the FTT on the basis that Article 37 of Directive 2008/118/EC (“the Excise Duties Directive”) meant that as the wine had been lawfully seized and destroyed, no excise duty point ever arose, the appellant was an innocent agent, and the penalty assessment was out of time. The FTT dismissed the appeal.

The Appellant appealed to the Upper Tribunal. The Upper Tribunal granted permission to appeal. However, it dismissed the appeal holding that Article 37 did not apply. The Appellant applied directly to the Upper Tribunal for permission to appeal to the Court of Appeal. Arfan Khan was then instructed and led a written skeleton argument for permission to appeal to the Court of Appeal.

The Upper Tribunal exceptionally granted permission to appeal against its own decision on the Article 37 ground. It held that the appeal raised a point of general public importance in respect of which there were real prospect of success.

The Respondent filed a Respondent’s notice seeking to uphold the Upper Tribunal on the basis that excise duty was chargeable by reason of a deemed duty point following the reasoning in Jones v HMRC, and that Article 37 did not as a result apply.

The Respondent’s notice proceeded contrary to what was alleged to be written concessions made by the Respondent. It was alleged that the Respondent had conceded before the Upper Tribunal that the basis of seizure did not necessarily require duty points to arise where the goods had been lawfully seized, and there was no challenge to the legality of the seizure.

Following the grant of permission, the Appellant filed supplemental submissions in response to the Respondent’s notice. These included a novel submission, not considered in Jones v HMRC, namely that, if the statutory deeming provisions apply to bar jurisdiction, they should be set aside in order to give effect to Article 37 of the EC Directive and Article 47 of the EU Charter and/or declared incompatible with Article 6 of the ECHR. The supplemental submissions distinguished the decision in Jones.

The Court of Appeal (Lord Justice Patten, Lord Justice Baker, and Mr Justice Mann) dismissed the appeal holding:

“50. As Mr Khan and Mr Howard on behalf of the appellant accepted in the course of the hearing before us, unless Article 37 subsequently disapplied its effect, there can be no doubt that the provisions of Article 33 were satisfied. The wine in the fifth container had been “released for consumption” in Italy. At the point of arrival at Purfleet, it was being “held for commercial purposes … in order to be delivered here”. Accordingly, it was subject to excise duty here and excise duty became chargeable here. At that point, under regulations 5 and 6 of the HMDP Regulations, an “excise duty point” arose and the appellant, being a person “concerned in carrying … the goods”, became liable to a penalty under paragraph 4 of schedule 41 to the Finance Act 2008.

51. Did Article 37 apply so as to prevent excise duty being chargeable on the wine? In my judgment, it did not, for the reasons identified by the UT at paragraphs 61 to 71 of its decision. …

52. In the context of this appeal, the construction of Article 37 turns on two phrases: (1) “during their transport in a Member State” and (2) “as a consequence of authorisation by the competent authorities of that Member State”.

53. I agree with the UT that “transport” should be given its ordinary meaning. For my part, I derive no assistance by comparing and contrasting the use of the word “movement” in Article 38. The wine in the appellant’s container was being transported from the ship to its ultimate destination in the UK. Had it continued on its journey, it would have been “transported” until it reached its destination. But it did not continue on its journey. It was seized by Border Force and held by that agency until it was destroyed following forfeiture. At the time of its destruction, it was not being “transported”.

54. As for the second phrase, I do not accept the submission that the ultimate destruction of the wine by or on behalf of Border Force following forfeiture falls within the scope of the phrase “as a consequence of authorisation by the competent authorities”. The destruction of the wine following forfeiture took place on the orders of Border Force. The word “authorisation” means the granting of official permission. The plain and obvious purpose of including that phrase in Article 37 is to cover the destruction of goods which are partially, but not totally, destroyed in transit. Article 7(4) provides that, for the purpose of this Directive, goods shall be considered totally destroyed or irretrievably lost when they are rendered unusable as excise goods. But there will be other cases where the goods are substantially damaged while being transported but have not become totally unusable (for example, where a proportion of a consignment of wine bottles are broken but the remainder are intact). Article 37 allows for circumstances where the competent authorities may formally agree to the destruction of the remainder so as to remove them from the scope of the duty”.

The Court of Appeal held that the Respondent’s notice had become academic by reason of the Appellant’s concession on appeal as follows:

“63. I would be reluctant to embark on a lengthy analysis of HMRC’s alternative argument raised in its respondent’s notice based on its interpretation of the decision in Jones. I take that view for three reasons. First, as I have just concluded, I consider the UT’s decision as to the construction of Article 37 was correct. On behalf of the appellant, Mr Khan in effect accepted at the outset of the hearing before us that, subject to its being subsequently removed by Article 37, an excise duty point arose under Article 33, and it must have persisted. The two factors which HMRC are seeking to have “deemed” from the failure of the appellant to contest the condemnation of the wine – that excise duty was chargeable and an excise duty point had arisen – are therefore conceded by the appellant. The “deemed duty” point is therefore of academic interest only in this appeal..”.

As a result, and amongst other reasons, the Court of Appeal refused to offer any expansive dicta on the Respondent’s notice. However, it concluded that the Upper Tribunal’s comments on the interpretation and application of the decision in Jones (based on the Respondent’s concession below) should not be regarded as authoritative. The Court of Appeal did not permit the Respondent to resile from what the Upper Tribunal described as a concession. It left open the possibility of argument in future cases.

Arfan Khan has a specialist appellate practice in Chancery, Commercial and Public law. He also has a substantial litigation practice in Chancery, Commercial and Public law. He is an experienced pleader, as evident from his numerous reported cases at appellate level, as well as in the High Court both as a leader and sole counsel.

The Court of Appeal judgment can be access here:

https://www.bailii.org/ew/cases/EWCA/Civ/2020/405.html

General Transport v HMRC

 

Arfan Khan successfully leads novel appeal in the Court of Appeal

Commercial and Chancery, Court of Appeal, Court of Appeal Barrister, Public Law - Court of Appeal

Court of Appeal – Second appeal

Fowler v Secretary of State for Work & Pensions (2019) EWCA (Court of Appeal)

This was a second appeal to the Court of Appeal against a decision of the Upper Tribunal. The appeal raised an important point of law regarding the nature and scope of the First Tier Tribunal’s jurisdiction to reduce Industrial Injuries Disability Benefit (IIDB) on appeal under s.12 of the Social Security Act 1998.

The First Tier Tribunal reduced the Appellant’s industrial injuries benefit to 5% when, based on medical evidence, the Respondent confirmed that the degree of the Appellant’s disablement was 36%. The Respondent stood by that assessment in its mandatory reconsideration decision. Nevertheless, the FTT reduced the IIDB exercising its inquisitorial jurisdiction. Based on authority, it was said that the FTT possessed jurisdiction under s.12 8 (a) of the Social Security Act 1998.

The Upper Tribunal Judge Hemingway upheld the FTT. He concluded that the issue for appeal was the correctness or otherwise of the assessment generally, rather than whether or not either the 36% percentage was correct, or too low.

The Appellant appealed to the Court of Appeal. Lord Justice Newey granted permission to appeal on the basis that there was point of general public importance regarding the jurisdiction of the FTT in respect to which the Appellant had real prospects of success.

The matter came before the Court of Appeal who adjourned the appeal for the Appellant to be represented by Counsel. Arfan Khan was then instructed to lead the appeal, and produced a Replacement Skeleton. This identified a novel statutory scheme, not applied or considered in any of the cases in this area. It contended that the issue of jurisdiction fell to be determined through the statutory scheme by looking at the substance of the appeal, and that the inquisitorial jurisdiction of the tribunal did not extend to looking at issues which are not raised through this jurisdictional gateway. The authorities relied upon by the Respondent were not on point. But could be read consistently with the statutory scheme.

The Respondent filed a Supplemental Skeleton argument on 15/11/2019 (Friday), which was met by a Reply skeleton from the Appellant on 16/11/2019 (Saturday). The Respondent proceeded to compromise the appeal by signing a consent order on the morning of the appeal hearing. It did so by agreeing, amongst other matters, to pay the Appellant’s IIDB for the relevant period at 36%, and the Appellant’s costs to be assessed if not agreed.

Lady Justice Rafferty, Lady Justice King and Lord Justice Richards approved the consent order at an oral hearing. As a result, the appeal was withdrawn. But in response from some probing questions from the Court of Appeal bench, the Respondent agreed to place a notice on its website to the effect that, the decision of M R Hemingway Judge of the Upper Tribunal in Fowler v Secretary of State for Work & Pensions, is not to be relied upon as persuasive authority in future cases.  

Court of Appeal grants permission in important trust appeal

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Court of Appeal (CHD) grants permission to appeal in important trust appeal

The Appellant, a former solicitor, claimed he held a beneficial interest in property by way of constructive or resulting trust. The property was purchased as an investment. It was registered in the sole name of the Appellant’s wife. A joint charge was placed over the property by the Legal Services Commission. This was done in order to secure the joint indebtedness of the Appellant and his wife arising out of their legal practice as solicitors.

The Court at first instance held that the Appellant was not entitled to a beneficial interest in the property by way of constructive or resulting trust, and that the property vested in the wife’s joint trustees in bankruptcy.

The Appellant appealed. Permission to appeal was refused on the papers by the Honourable Mr Justice Snowden. The Appellant renewed permission to appeal on the issue of whether he had a beneficial interest in the property. Following an oral hearing in the Business & Property Courts of England & Wales (Chancery Appeals), the Honourable Mr Justice Snowden was ‘persuaded’ to grant permission to appeal limited to that issue without expressing a concluded view on the merits of the appeal.

The appeal raises evidential issues concerning the correctness of the first instance judge’s findings of fact on the Appellant’s beneficial interest in investment property in light of the LSC charge, and all the relevant circumstances.

The appeal also seeks to establish a novel point of law in sole ownership cases involving the determination of beneficial interest in property. Namely where property is purchased as an investment, in the absence of an express direction by the Privy Council that its decision in Marr v Collie [2018] AC 631 represents the law of England and Wales, the Courts at first instance are bound to follow the Court of Appeal decision of Lord Neuberger to the contrary in Laskar v Laskar [2018] 1 WLR 2695.

This is consistent with higher authority, including the reasoning of the Supreme Court in Willers v Joyce [2018] AC 851 concerning the procedure in the Privy Council for holding that a Court of Appeal decision is wrong. This involves expressly making a decision that the Court of Appeal is wrong, and directing that the domestic courts should treat the Privy Council decision as representing the law of England and Wales. Marr does not expressly appear to overrule Laskar. Nor does it appear to contain the direction in question.

Arfan Khan represented the Appellant and did not appear below.

 

Diana Loson appeals to the Supreme Court

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Diana Loson appeals Court of Appeal judgment to the United Kingdom Supreme Court

Loson v Brett Stack & Anor [2018] EWCA Civ 803; Times, April 26, 2018  

On 26/8/2016, the Court of Appeal granted Mrs Diana Loson permission to appeal on a second appeal.

On 17/4/2018, the Court of Appeal determined the appeal. It provided guidance on the correct test to vary a judgment debt under CPR r 40.9A.

The Court of Appeal rejected the contention that the test to vary a judgment debt under CPR r 40.9A is one of exceptional circumstances.

The Court of Appeal, however, provided further guidance to the Courts on the circumstances in which a creditor can enforce a judgment debt, and a debtor is entitled to payments by instalments.

On the basis of this guidance, the Court of Appeal set aside the order made by the learned District Judge.

On 2 May 2018, Mrs Diana Loson filed a petition with the United Kingdom Supreme Court, seeking leave to appeal against the Court of Appeal’s guidance. A decision is now pending.

Arfan Khan was instructed throughout the Court of Appeal proceedings, and is now instructed on appeal to the Supreme Court. He did not appear in the proceedings below.

The decision of the Court of Appeal can be accessed here:

http://www.bailii.org/ew/cases/EWCA/Civ/2018/803.html

State Immunity
Court of Appeal

 

 

 

 

 

Upper Tribunal Judicial Review appeals test overturned

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Upper Tribunal Judicial Review appeals test overturned: Nwankwo v Secretary of State for the Home Department [2018] EWCA Civ 5

The Applicants appealed a decision of the Upper Tribunal refusing to grant permission to appeal a costs decision made in judicial review proceedings.

The Upper Tribunal refused permission to appeal by applying the second appeals test referred to in section 13(6) of the Tribunals, Courts and Enforcement Act 2007.

The Applicants appealed on the error of law ground.

Sir Kenneth Parker ordered an oral permission to appeal hearing.

In relation to the point of principle, Lord Justice Peter Jackson and Lord Justice Singh held that, based on the relevant statutory provisions, in judicial review claims heard by the Upper Tribunal, rather than on appeal from the First Tier Tribunal, the test for an appeal to the Court of Appeal was the first appeal test in part 52, not the second appeals test. Both rejected the Respondent’s attempt to create an elevated threshold test for the grant of permission to appeal. As the Court of Appeal held § para 77:

“the test for an appeal to the Court of Appeal from the UT in cases of this kind, which are claims for judicial review heard by the UT exercising its original jurisdiction rather than appeals from the FTT, is the first appeal test and not the second appeal test. The UT erred in applying the second appeal test”.

Applying the first appeals test, the Court of Appeal dismissed the application for permission to appeal the costs order on the basis that the costs decision of the Upper Tribunal was correctly made. However, the Court of Appeal certified that the decision may be cited in other cases in satisfaction of para 6.1 of the Practice Direction (Citation of Authorities).

Arfan Khan appeared for the First Applicant whose submissions were successful on the point of principle, which led the Respondent to concede the same in a skeleton and at the oral hearing following the service of Replacement Grounds of Appeal on behalf of the First Applicant. Arfan Khan also successfully resisted the Respondent’s application for costs. The Court of Appeal did not make any costs orders.

Arfan Khan was instructed by Dylan Konrad Kreolle Solicitors on appeal to the Court of Appeal, and did not appear in the proceedings below. The Court of Appeal judgment can be accessed through the following links:

http://www.bailii.org/ew/cases/EWCA/Civ/2018/5.html

Nwankwo Judgment (PDF)

State Immunity
Court of Appeal

Court of Appeal allows appeal in Yadly Marketing

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Arfan Khan was instructed as lead Counsel and led on the appeal to the Court of Appeal. The appeal was allowed. The case is reported as Yadly Marketing v Secretary of State for the Home Department [2016] WLR (D) 621; [2016] EWCA Civ 1143.

The full judgment can be accessed online here or by clicking the PDF link below:

http://www.bailii.org/ew/cases/EWCA/Civ/2016/1143.html

Yadly v Secretary of State pdf

In so far as material, the case summary reported in the [2016] WLR (D) 621 reads as follows:

“Yadly Marketing Co Ltd v Secretary of State for the Home Department [2016] EWCA Civ 1143

Arden, Beatson Henderson LJJ

2016 Nov 8; 23

Practice — Documents — Filing — Penalty notice issued in respect of overstaying employees — Last day for filing appellant’s notice falling on public holiday when court office closed — Appellant’s solicitor filing notice day after — Whether statutory language to be construed as granting an extra day — Immigration, Asylum and Nationality Act 2006 (c 13), s 17(4)

The Home Office’s Civil Penalty Compliance team issued a civil penalty notice on the employer pursuant to section 15 Immigration, Asylum and Nationality Act 2006 in respect of employees who were working without appropriate leave. The employer filed a notice of objection under section 16. The Secretary of State issued an amended notification of liability on 25 April 2014, in which it was stated that, under section 17(4) of the 2006 Act, any appeal had to be brought on or before 26 May 2014, which in fact was a bank holiday Monday when the court offices were closed. On 27 May 2014 the employer attempted to issue an appeal at a county court which wrongly refused to accept it. A further attempt to issue the appeal was again wrongly refused on 28 May. The employer then posted an appellant’s notice to a different county court and the appeal was lodged on 30 May 2014. When the case was listed for appeal the Secretary of State applied for the appellant’s notice to be struck out as out of time. The judge allowed the Secretary of State’s application, determining that there was no provision in the 2006 Act for an extension of time for appealing, that CPR r 2.8(5) did not apply to statutory time limits and that the delay between the rebuff received at the county court on 27 May and the papers arriving at a different county court on 30 May indicated that the employer had not done all it could to bring the appeal within the prescribed time limit and therefore there were no exceptional circumstances justifying a time extension.

On the employer’s appeal—

Held, appeal allowed. While it was not open to the court to extend the time limit of a statutory period for the bringing of an appeal under section 17 of the Immigration, Asylum and Nationality Act 2006, where the last day of the specified number of days fell on a public holiday or on a day when the relevant public office was closed for the entire day, section 17 was to be construed as requiring the delivery of the relevant document to the court office itself on the following business day. Further, while the scope for departure from a 28-day time limit such as that in section 17 was extremely narrow, a person was entitled to serve notice at the last possible moment and the relevant period was not to be cut down by bringing it forward. In the present case, the time limit would have been brought forward by three days and, therefore, the employer had been entitled to file its appellant’s notice on the day after the bank holiday. Moreover, the employer had done all it could to issue the appeal in time and the county court’s error constituted exceptional circumstances justifying an extension of time and the judge was wrong to determine otherwise (paras 27, 36, 38, 41, 45, 46).

Pritam Kaur v S Russell & Sons Ltd   [1973]  QB  336, CA applied.

Van Aken v Camden London Borough Council   [2003]  1  WLR  684, CA, Mucelli v Government of Albania   [2009]  1  WLR  276, HL(E) and Adesina v Nursing and Midwifery Council   [2013]  1  WLR  3156, CA considered…”.

http://cases.iclr.co.uk/Subscr/search.aspx?path=WLR+Dailies%2Fwlrd2016%2Fwlrd2016-621