England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No. ^^ - no bundle]

		Royal Courts of Justice Strand, London, WC2A 2LL
		7th June 2007

Lord Justice Sedley:

1. This appeal comes before the court in unusual circumstances. The respondent is a Zimbabwean whose claim to protection on both refugee and human rights grounds succeeded before an adjudicator, (^^name – no bundle) Mr M J Gillespie, in February 2005. The Home Secretary was given permission to appeal on the ground that two of the adjudicator's key findings in the respondent's favour were speculative. The AIT, as it by then was, (^^names) Mr C J Hodgkinson, Miss P L Ravenscroft and Dr T Okltlkpi in November 2005 dismissed the appeal. A Senior Immigration Judge, Mrs J C Gleeson, gave the Home Secretary permission to appeal to this court. It was not until 18 January 2007 however that an appellant's notice was filed in this court by the Home Office.
2. In this court, Mr Nathan the respondent's counsel accepts, as he has to, that the AIT's decision is untenable, but he seeks the dismissal of the appeal on two other grounds. The first is that the appellant's notice is out of time and undeserving of an extension; the second is that the appeal to the AIT was hopeless, and had it been properly adjudicated on was bound to fail; it was just a matter of time. It took the AIT over a year to grant the Home Office's application for permission to appeal to this court in final form. The initial grant of permission, however, was dated 7 March 2006. However, because of some unnecessary confusion as to who was to be described as the appellant and who was the respondent, the formal order went to and fro between the AIT and the Treasury Solicitor producing a second version in October 2006, and lastly an order of 19 December 2006. The latter seems on examination little clearer than its predecessors and was not, it appears, served on the Home Secretary until 14 January 2007. In the result, it is said on his behalf by Mr Kovats that the appellant's notice dated 18 January 2007 is in time.
3. CPR 52.4(2) provides:

"The appellant must file the appellant's notice at the appeal court within –

…

b) … 21 days after the date of the decision of the lower court that the appellant wishes to appeal."

This, however, does not work well for tribunals such as the AIT, before which it is not practicable to apply for permission to appeal at the moment of delivery of judgment. For this reason, the practice direction set out at PD 52, 21.7(3) provides:

"The appellant's notice must be filed at the Court of Appeal within 14 days after the appellant is served with written notice of the decision of the tribunal to grant or refuse permission to appeal."

The provision is specifically tailored to Asylum and Immigration appeals.

4. Mr Kovats submits that the Home Office was entitled to rely upon the last version of the AIT's grant of permission to appeal as superseding the earlier ones. He accepts, nevertheless, that the production of the two later versions of the AIT's order could not have been anticipated in March 2006 when the first was received. By analogy with Rule 60(3) of the AIT Procedure Rules 2005, he contends that time for appeal runs only from receipt of the amended decision. Rule 60(3) provides in relation to the correction of clerical errors and accidental slips or omissions:

"The time within which a party may apply for permission to appeal against, or for a review of, an amended determination runs from the date on which the party is served with the amended determination."

5. But Hughes LJ pointed out in argument the Home Office is not seeking to appeal against the AIT's order granting permission to appeal. In my judgment the Home Office received notice of the grant of permission to appeal against the AIT's determination on or very shortly after 14 March 2006 and the CPR, by virtue of the practice direction, gave 14 days from receipt of it for the filing of the appellant's notice. Any correction of the wording of the grant should have been dealt with as a simple clerical error, if it really needed to be dealt with at all.
6. In the situation, Mr Kovats seeks an enlargement of time. He submits that no time has in reality been lost, since the case would have had to go on hold because of the AA case on the safety of involuntary returns to Harare Airport, which was not decided in this court on its second time round until March 2007. Secondly, he submits the Home Secretary reasonably believes that time ran only from the date of receipt of the amended order of the AIT.
7. For my part I, do not find either of these grounds at all persuasive. By no means all Zimbabwe cases have been on hold pending the decision or the redecision of AA. Those, such as the present case, raising distinct issues in addition to the problem of immediate risk on return have in general gone ahead. In any event, this was something for the court to decide case by case. I think it was reasonable for those representing the Home Secretary to believe that CPR 52.4(2) of the Practice Direction did not apply where the formal grant of permission to appeal required amendment. Nobody in fact has deposed that they did believe it.
8. Mr Kovats' argument has been in substance that it was already self-evident. But the sub rule and the practice direction are simple and clear. Time runs from the receipt of a grant or a refusal of permission to appeal. Since it was on or about 14 March that the Home Office was notified of the grant, the appellant's notice should have been filed by the beginning of April. For my part, it seems to me that if anything is self-evident, it is to the contrary of the assumption upon which those instructing Mr Kovats proceeded. Any amendment of the terms used in the grant of permission should have been pursued, if it really had to be pursued, thereafter.
9. I turn to the merits. Assuming, however, contrary to my view, that the appellant's notice is in time or that time ought to be enlarged, the case is one of a class which this court sees perhaps more often than it should, in which a sound initial determination is upheld in a faulty redetermination. The adjudicator here gave a decision which was perhaps surprising in its outcome, but was closely and conscientiously reasoned and not infected by any obvious legal error. In essence, he found that while the respondent, who was the appellant before, him was not to be believed in most of her account of oppositional political activity in Zimbabwe, her bona fide MDC activity in this country since 2002 had exposed her to a real risk of identification and targeting by Zanu-PF security forces.
10. The adjudicator went on to ask himself the correct questions about the bona fides of the respondent's activities, and whether it would place the respondent at risk if she were to be returned. He concluded that:
(done from audio – unable to obtain bundle)

"While it can fairly be said that the appellant has sought to obtain from her MDC membership what advantage she can in her present claim, it cannot be said that in doing so she has claimed a political opinion which she had never previously held or expressed, and that her fear of consequence persecution and ill treatment was both genuine and well founded."

11. It was against the last of these conclusions that the Home Office sought and obtained permission to appeal to the AIT. The grounds were that the adjudicator had resorted to speculation in finding a) that the High Commission staff would have photographed her and b) that any such photographs would be used as a basis for ill treatment or persecution on return. Permission was granted in the AIT to advance these grounds.

On the reconsideration hearing, however, the AIT expressly declined to entertain them because it considered, for reasons which I have to say I do not entirely understand, that it was sufficient that they rejected the Home Office Presenting Officer's argument. This, as the AIT correctly noted, was indeed a remarkable one, in which nobody could qualify as a refugee until they were forcibly removed, and that removal to Zimbabwe had been suspended. While such an argument, if it was put forward, no doubt deserved to fail, and while it might have been permissible for the AIT to ignore other grounds which had been explicitly or implicitly abandoned and decide the case on what had been argued, what the AIT in the event held was this, at paragraph 13 on page 25 of the bundle from their determination:

(done from audio – no bundle)

"Having heard submissions upon the above issue we find that the adjudicator's determination shall stand, as it reveals no material error of law. We did not proceed to hear argument upon the grounds of appeal as drafted as we were satisfied that based upon the tribunal's conclusions in AA and LK, the appellant has established her right to refugee status. Thus even had Mr Johnson been able to establish error of law on the part of the adjudicator, we would necessarily have concluded that such error was not material."

12. Unfortunately the AA case relied upon by the AIT was AA (Involuntary Return to Zimbabwe) CG [2005] UKIAT 00144, a decision which had been overset and superseded by the time the AIT sat in the present case. For this reason, Mr Nathan resignedly accepts that Mr Kovats' principal ground that the AIT mistakenly applied a superseded country guidance decision has to succeed. But he submits that the appeal should nevertheless not be allowed, because this court does not act in vain, and because the grounds which would have to be remitted for determination are on examination unarguable. He has not put it this high I think, but it seems to me that he is able to do so in the present case with at least some confidence.
13. Immigration judges have daily to decide how real possibilities of every kind are; frequently, on very slender evidence. Here the adjudicator went on from the passage I have mentioned to spell out over two pages the reasons, grounded both in background evidence and in a relevant country guidance case, FM [2003] UKIAT 00163, for considering it a real possibility that the respondent would have been photographed by High Commission staff, and that if she were returned use would be made of the pictures to identify and target her. It is not necessary to set the text out in full, although it is a matter of record, since it is not going to be decisive in this appeal, but I venture to comment that this determination of the adjudicator is exemplary in the care with which it is formulated, and was most unlikely to be held to have strayed from inference and estimates into mere speculation in this or any other regard.
14. In conclusion, I would therefore dismiss this appeal on the ground that the appellant's notice is out of time, and that no good reason has been established for extending time. Indeed, one significant reason for not extending time is that even if we had been persuaded to remit the case to the AIT, for reasons I have outlined, the AIT would almost certainly have upheld the adjudicator's decision as free of legal error.

Lord Justice Hughes:

15. I agree for all the reasons which my Lord, Lord Justice Sedley, has explained. In particular, I agree, first, that time ran from the service of the March 2006 notice that permission to appeal had been granted by Mrs Gleeson. The subsequent clerical amendment of the terms of that notice does not affect that proposition. For the reasons which my Lord, Lord Justice Sedley, has explained, Rule 60(3) of the Asylum and Immigration Tribunal Procedure Rules 2005 does not apply to this case; it would apply to a clerical amendment of an order against which appeal is made, but in this case there is no question of appeal against Mrs Gleeson's grant of permission.
16. Secondly, as to extension of time I would add only this. On the facts it is clear that any belief which the Secretary of State may at some stage have entertained that Rule 60(3) could be of assistance to him did not and could not arise until he was already very long out of time. The original grant of permission in March 2006, despite any clerical misdescription of the parties, clearly gave the Secretary of State what he was after; that is to say, permission to appeal. It was wholly ignored by the Secretary of State. The only query which was ever raised as to its terms was raised by the solicitors for GD, the claimant, and not then until October 2006 by which time the time for appealing was long past. At the same time, the solicitors for GD wrote a number of chasing letters to the appropriate offices of the Home Office asking its intentions in relation to the permission to appeal which had been granted in March. Those letters were ignored.
17. For those reasons, in addition to those which my Lord, Lord Justice Sedley, has explained, I too would dismiss this appeal.

Lord Justice Ward:

18. I agree for the reasons given by both my Lords, Lord Justice Sedley and Lord Justice Hughes. There can be only one grant of permission to appeal. There were in fact three documents produced giving that permission, the first dated 7 March containing a clerical error that the application by the appellant was granted, when in fact it was an application made by the Secretary of State for the respondent. That was an obvious clerical error, which ought to have been corrected under the slip rule, as that rule is provided for in Rule 60 of the Asylum and Immigration Tribunal Procedure Rules of 2005, paragraph 1 of which reads:

"The Tribunal may at any time amend an order, notice of decision or determination to correct a clerical error or other accidental slip or omission."

I would have thought that the ordinary rule applies, and that any such correction dates back to the time of the original order.

19. Paragraph 3 is special. That provides:

"The time within which a party may apply for permission to appeal against, or for a review of, an amended determination runs from the date on which the party is served with the amended determination."

20. So that rule is specific, in that it applies to the time within which a party may apply for permission to appeal. Here, the application for permission to appeal was made against the decision of the AIT; it was properly made; it was granted on 7 March, and the subsequent documents of 19 October are simply documents intended to correct the clerical error, they have no superseding force. The first decision stands, and that begins the clock ticking; the Secretary of State did not apply to this court in time.
21. The Secretary of State has failed to satisfy me, for reasons given by my Lords, Lord Justice Sedley and Lord Justice Hughes, that time ought to be extended, and for that reason I, too, would dismiss this appeal.

Order: Appeal dismissed.