Barot v Secretary of State for the Home Department: time limits and the limits of merits in judicial review extensions

The Court of Appeal has dismissed an application for permission to appeal in Barot v Secretary of State for the Home Department [2026] EWCA Civ 218, confirming that procedural compliance must be taken seriously at every stage of immigration judicial review proceedings — and that a merely arguable underlying claim will not rescue an applicant who has failed to explain a delay.

The first appellant, an Indian national who had entered the United Kingdom as a student, had been convicted of arranging or facilitating sexual activity with a child contrary to section 14 of the Sexual Offences Act 2003. He received a suspended sentence of 17 months. Though he had interacted only with an undercover police officer rather than an actual child, the sentencing judge considered the offence sufficiently serious to warrant a custodial term. His application for leave to remain as a graduate student was refused under paragraph 9.4.1(c) of Part 9 of the Immigration Rules, which mandates refusal where an applicant has been convicted of an offence that caused serious harm.

The application for judicial review of the refusal was filed seven days late. The Upper Tribunal declined to extend time, applying the three-stage framework from Denton v TH White Ltd [2014] EWCA Civ 906 and R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633. It found the breach serious and significant, accepted no adequate explanation for the delay, and concluded that the underlying claim — whilst arguable — was not sufficiently strong to tip the balance in the appellants' favour.

The appellants then filed their appellant's notice three days late. The Court of Appeal (Lewis, Baker and Zacaroli LJJ) again found this a serious and significant breach. The evidence filed on the appellants' behalf gave no account of what steps, if any, were taken between the oral hearing on 31 January 2025 and receipt of the sealed order on 3 February 2025. The explanation offered — that the appellants wished to consult counsel who was unavailable until 10 February 2025, by which point the deadline had already passed — was held to be no adequate reason at all.

On the merits, the court rejected the submission that the offence could not be said to have caused serious harm because no child was actually harmed. Applying the approach endorsed in R (Mahmood) v Upper Tribunal [2020] EWCA Civ 717, Lewis LJ observed that some offences cause societal rather than individual harm. The relevant Home Office guidance expressly encompasses offences that "contributed to a widespread problem that causes serious harm to a community or to society generally" and identifies sexual offences as falling within that category as a matter of course. The fact that adult demand for child sexual services sustains the market for such exploitation was, on any view, harmful to society — and the Upper Tribunal had been entirely rational in so concluding.

The court confirmed that Hysaj applies not only to extensions of time for appellant's notices but also to applications to extend time for making judicial review claims in the Upper Tribunal. The relevant passage from Hysaj — that merits will only bear significantly on the extension question where a claim is "very strong or very weak" — was correctly applied below. An arguable but not particularly strong claim falls squarely in the middle ground where procedural default will ordinarily be decisive.

Both grounds of appeal were refused. The court declined to extend time for the appellant's notice and, in any event, would have refused permission to appeal on the substantive grounds. Neither ground had a realistic prospect of success.

The judgement serves as a reminder that procedural rigour applies throughout immigration judicial review litigation. A solicitor's inability to arrange a timely conference with counsel does not constitute good reason for missing a short statutory deadline, and applicants who have already been the subject of an adverse extension of time decision cannot expect a more lenient approach at the appellate stage.

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