England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (PRIVATE DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
AS/13970/2004
HX/1648/2004

		Royal Courts of Justice Strand, London, WC2A 2LL
		13th March 2007

Lord Justice Buxton :

The nature of the case

1. These matters have been listed together because they both involve an issue on which there is no specific guidance from this court, applications for extension of time for the filing of an appellant's notice [EOT] where permission to appeal has already been granted by the Asylum and Immigration Tribunal [AIT]. The directions for the applications specified that we should consider only EOT, and not thereafter, if time were extended, the substance of the appeals. We have so limited ourselves, but I suggest later in the judgment, with the assistance of a substantial amount of hindsight, that in future it may be better to consider the two issues together.

2. Before examining the general issues it is necessary to set out, as briefly as may be, the facts and procedural history.

   Facts and procedural history: BR

3. BR's case was that he had left Iran to escape persecution because of his involvement with the Kurdish Democratic Party of Iran [KDPI]. He claimed that he had been present at a KDPI demonstration against the government's removal of the local governor in the city of Merhewan. His father, a member of the KDPI, had been arrested at the demonstration, and after BR had left the country the security services visited his home and told his mother that he must report to their offices or be arrested.

4. BR's claim for asylum went through various procedural stages, but we can limit ourselves to noting that on reconsideration an adverse decision was made by Immigration Judge Zucker on 13 July 2005. It had been conceded by the Secretary of State in previous proceedings that the authorities in Iran treated members of the KDPI with oppression. The IJ accepted that much of BR's account of his own experiences was consistent with the objective country evidence, but concluded that neither BR nor his father had significant connections with the KDPI and that any enquiry for him by the Iranian authorities was not because of KDPI activity but because of participation in a protest when his father was known to be a political activist. The IJ also concluded, in his §43, that BR's case "fell apart" when the IJ turned to a collateral part of his evidence, where BR said that he had been able to travel back to his farm outside Merhewan after the demonstration: despite his allegation that the security forces had invested the whole city with checkpoints.

5. On 28 July 2005 BR applied to the AIT for permission to appeal to this court, on grounds that included the IJ's failure to consider two pieces of documentary material: a letter from the KDPI in exile in Paris stating that BR was a sympathiser of the KDPI who for that reason had been obliged to leave Iran to escape oppression; and what purported to be a final instruction to BR to report to his local police, failing which he would be sentenced in his absence as an enemy of Iran.

6. On 10 August 2005 the AIT granted BR that permission. Senior Immigration Judge Dr Hugh Storey said, in part:

   ….the evidence relied upon by the IJ about checkpoints does not exclude the possibility that they affected vehicles on road, not persons on foot. The Immigration Judge's failure to address relevant documentary evidence (the police station letter in particular), together with the finally [sic: finely] balanced nature of his assessment of factors for and against otherwise, disclose in my view an arguable error of law capable of having a material effect on the outcome of the appeal.

7. At the time BR was representing himself, but on 4 October 2005 he went to his present solicitors with the AIT's letter, that had originally enclosed Dr Storey's grant of permission. The AIT's letter did not say (a matter to which I will revert), but the solicitors should have known, that paragraph 21.7(3) of CPR PD 52 provides in relation to appeals from the AIT that:

   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.

   In the interests of economy of language that rule covers two different cases. If (the usual case) the AIT has refused permission, the appellant's notice will serve also as a renewed application to this court for permission. But if the AIT has granted permission, the appellant's notice will be, and be only, the formal document on which that appeal will proceed. In either case, if the time limited is not met the applicant will require EOT from this court, a process that the solicitors in BR's case should have immediately initiated.

8. We have a witness statement from the solicitor who has handled the matter throughout, but it gives no explanation at all of why the proper steps were not taken. Instead, counsel (not Mr Brown) was consulted as to the prospects of success. It may be noted that it is difficult to place much weight on counsel's advice unless the court sees a copy of her instructions, which has not been provided in this case. In a witness statement counsel says that she was told that permission had been granted to appeal to this court, and therefore advised that because that permission had been given by the AIT itself the Secretary of State be approached with a view to an agreed remission of the case. That was sensible advice, but met with no helpful response when the Secretary of State was approached, because (the appeal not having been filed) he knew nothing about it. The solicitors obtained the terms of Dr Storey's order from the AIT; and then wrote, apparently on a number of occasions, to the AIT on the (wholly mistaken) basis that the appeal was pending in that tribunal, and asking for a date. They received temporising replies, no doubt written by busy people who understandably had not grasped that the enquiry was misconceived. Eventually, on 1 September 2006, the AIT pointed out to the solicitors that the matter was pending in this court, but told them to approach the Administrative Court office. That latter advice was not correct, but it at least caused the solicitors to apply for community funding. That was granted on 18 October 2006, but the file was not returned to the solicitors until the end of November. Mr Brown was then instructed, who immediately appreciated the problem, and caused an application for EOT to be lodged on 21 December 2006, sixteen months out of time.

9. There is no excuse, and no explanation given, for that delay. The solicitors, who claim immigration and nationality law as one of their specialisations, were ignorant of an elementary rule of procedure in that field. And, somewhat disturbingly, they have not given any indication to the court that their staff have now been re-educated on this topic. It is true that some of the subsequent correspondence from the AIT did not assist them, but that correspondence was replying to questions that the AIT should never have been asked.

   Facts and procedural history: MD

10. MD's claim to asylum was based on his alleged membership of an organisation called UFIN. He also had passed though various tribunals, his claim having been originally rejected by an Adjudicator in January 2005, MD's evidence being found not to be credible. However, in February 2006 the AIT ordered reconsideration. That tribunal accepted that it was for the Adjudicator to make findings as to the applicant's credibility, but criticised the Adjudicator for not having addressed his mind to what purported to be extracts from the UFIN website showing MD as secretary of UFIN. The reconsideration panel went on to refer to a previous decision KM (Opposition activities-UFIN) Iran [2004] UKIAT 00329, which accepted that membership alone of UFIN would not put a claimant at risk, "but, if on the facts of a particular case, it was shown that there was a reasonable degree of likelihood that an applicant had engaged in opposition activities in Iran, whether on behalf of UFIN or any other party, it was accepted that those activities were capable of giving rise to a well-founded fear of persecution." The AIT therefore concluded that

    In these circumstances we consider that there was a material error of law by the Adjudicator in not dealing with that single issue [ie, the presence of MD on the UFIN website]. We propose, therefore, to adjourn the matter for reconsideration on that one issue. At the Tribunal hearing the adjourned hearing will have to consider whether or not the Appellant's photograph did, in fact, appear on the UFIN website and, if so, the consequences thereof. All the other findings of fact by the Adjudicator in this case will stand.

11. That apparently modest agenda elicited from Immigration Judge Walters a 79 paragraph Determination, promulgated on 19 April 2006, delivered after what was in effect a complete rehearing, though subject to the findings of lack of credibility made in January 2005. The IJ rejected as a fabrication MD's claim before him to have been appointed Vice-President of UFIN, but held that in any event that was irrelevant to any prospect of persecution, since objective evidence showed that the Iranian authorities treated UFIN more as a subject of ridicule than as anything that they needed to worry about. The IJ continued at §§ 70 and 72 of his Determination:

    [70] I am prepared to accept and note that the respondent has conceded, so far as the video cassette is concerned, the appellant has attended organised meetings, demonstrations, televised interviews, and given speeches all of which may have been the subject of public broadcast to Iran. I accept that he may be involved in a magazine known as Ashena. I am prepared to accept that he has demonstrated outside the Iranian Embassy in protest at Iranian Presidential elections and that, because he took photographs, he was stopped by the Metropolitan Police, had his mobile telephone examined, and was questioned. None of these issues has been disputed none of these issues relates to or is otherwise relevant to any issue remitted to me for reconsideration.

    [72] To address directly the question posed by the Asylum and Immigration Tribunal directing re-consideration of this appeal on 13 January 2006 there is evidence which persuades me that the appellant's photograph may appear on a UFIN web site under the address www.ufin.org and that photograph may, in addition, contain what the appellant describes as his appointment as Vice President. Nevertheless, for reasons set out herein, I find that, and taking fully into account the evidence adduced before me, and the jurisprudence to which I have and have been referred, the appellant would not attract the adverse or indeed any other interest of the Iranian authorities.

12. Permission to appeal to this court was granted by the AIT on 11 May 2006. In her order granting that permission Senior Immigration Judge Eshun said:

    At paragraph 38 of the decision the IJ said that he had been directed by the AIT to consider whether or not the appellant's photograph appeared on the UFIN website and, if so, the consequences which flow from that. It is arguable that the IJ's use of the word "may" at paragraph 72 indicates a lack of clarity as to whether he unequivocally accepted that evidence. It is also arguable that the IJ's conclusion that the appellant would not attract the adverse interest of the Iranian authorities is at odds with the accepted facts set out at paragraph 70 of the determination.

13. The application also came, in circumstances that are not entirely clear, before Mr Mark Ockleton, Deputy President of the AIT, who endorsed it:

    This is a case in which, had I still the power to do so, I should have consulted the parties with a view to setting aside the decision appealed against and ordering a rehearing.

14. MD was already then represented by his present solicitors, to whom Miss Eshun's order was sent on 15 May 2006. The Notice of Appeal should have been lodged by, at the latest, 29 May 2006. We are told by "in house Counsel" employed by those solicitors that she simply made a mistake in (or, perhaps, did not attend to) processing the matter, and a breakdown in the firm's case management tracking system caused the latter not to identify the fault. Because of that a (presumably manual) file review was undertaken, which identified the omission, and the notice was thereafter promptly lodged on 10 January 2007, some seven and half months out of time.

15. Here again there is no excuse for the lapse, though the solicitors can at least say that they have frankly admitted the error; and unprompted have given assurances that steps have been taken to ensure that there is no repetition.

    Two general considerations

16. It may be convenient to mention two general issues before returning to the detail of the two cases.

17. Applications for EOT, or any other procedural issue, that arise in asylum cases bring into opposition two conflicting principles. The first is that immigration control must be not only fair and firm but also fast, in the sense that the status of persons coming to this country must be rapidly resolved, and if removal action is required it takes place promptly. That principle is of importance and one that the court must respect, however little it has on occasion been respected by the state authorities who urge it on the court in this case: see for instance the case-histories that were put before this court in HB(Ethiopia) et al [2006] EWCA Civ 1713. The second principle is that, as a party to the Refugee Convention, the United Kingdom has an obligation in international law to ensure that cases that justify international protection are properly investigated. It was that Convention obligation that led this court, speaking through Lord Woolf MR, to identify an (admittedly limited) obligation, different from that applying in ordinary private litigation, for courts trying asylum cases to take points of their own motion: see R v Home Secretary ex p Robinson [1998] QB 929 at p 946C.

18. The other general issue is that, as the present cases all too graphically show, delay of whatever sort will often have to be laid at the door of legal advisers. In ordinary private litigation, both before and after the introduction of the CPR, a party has attributed to him, and is responsible for, the action or inaction of his lawyers: see per Peter Gibson LJ in Training in Compliance Ltd v Dewse [2001] CP Rep 46[66], cited with approval by Arden LJ in FP(Iran) v SSHD [2007] EWCA Civ 13[80]. But, as Arden LJ went on to urge, considerations in asylum cases are different. And that view was underlined, as a matter of ratio, by Sedley LJ at §45 of the same case, where he adopted the observation of Lord Denning MR in R v IAT ex p Mehta [1976] Imm AR 38 that it is no consolation to tell a person that she can sue her solicitor for his mistake if the mistake is about to lead to her removal from this country; and, a fortiori, if the removal is to a condition of persecution.

    The general approach to delay

19. Guidance as to EOT was given by this court in the recent case of YD(Turkey) v SSHD [2006] 1 WLR 1646. That guidance is expressed in general terms, which are binding to the extent that they apply to the facts in issue. However, YD(Turkey) was a case in which it was sought to stay removal directions when not only had no permission to appeal been granted by the AIT, but the AIT had not even been applied to within the time limited. That meant that under the legislation the AIT could not consider the application, which had to be made to this court. It was that feature of the case that caused this court, at its §25, to remind itself of what it had said in Yacoubou [2005] EWCA Civ 1051:

    every day that passes from the time that the AIT is without jurisdiction is likely to weaken the chance of this court being willing to grant an extension of time.

    In that context the court in YD(Turkey) went on to repeat what had been said in the private law case of Smith v Brough [2005] EWCA Civ 261 [54]-[55], that "in any case in which an extension of time for appealing in excess of say two months" is sought the court would have strongly in mind the fundamental common law principle that the outcome of litigation should be final and, applying the same approach as in Taylor v Lawrence [2003] QB 528, would not grant EOT except in an exceptional case where it is satisfied that a significant injustice has probably occurred.

20. The court in YD(Turkey) then reviewed the facts of that case, saying in the leading judgment, at §§ 35-36:

    It seems to me that this was a case in which permission to appeal to this court would have been granted if the application had been made in time. But this fact alone cannot be of conclusive effect in deciding whether to grant a nine-month extension of time for appealing. For this purpose it is necessary to turn to CPR r 3.9: see Sayers v Clarke Walker (Practice Note) [2002] 1 WLR 3095. As to CPR r 3.9(a), I have already explained in para 25 above why the interests of administration of justice lean heavily against allowing such a long extension of time in any but the most exceptional cases.

    The court reviewed the separate sub-rules of CPR r 3.9, a matter to which I shall have to return, and concluded that

    the applicant would have to have a strong case that he was likely to finish up with ultimate success in his appeal against the original immigration decision, if permitted to continue to pursue it, in order to counteract the powerful considerations in the Home Office's favour:

    those powerful considerations being the danger of impairing the Home Office's "efforts to achieve swift and efficient machinery for removing asylum-seekers once their appeals appear to have been finally determined": ibid §36. YD had not demonstrated that, so extension of time was not granted.

21. I would be less than frank if I did not say that there are some aspects of YD(Turkey) that cause me concern. First, the point of departure is said to be the principle of finality of litigation. But enquiries under the Refugee Convention are not ordinary private litigation, and may require to be approached from a different perspective: see §17 above. It is very doubtful whether the Taylor v Lawrence standard is a reliable guide in that enquiry. Second, when the concern of the court is not primarily the modalities and efficiency of domestic private litigation, but whether the United Kingdom will fulfil its obligations under the Refugee Convention, any rule of thumb based simply on length of delay would seem to be misplaced. Third, the CPR r 3.9 check-list was formulated in the context of orthodox private litigation, and applications of it to the issues arising in immigration cases tend to be artificial: as may be thought to be illustrated by the exposition in §36 of YD(Turkey). The real question in such cases is the balancing of the two principles set out in §17 above. That the court effectively recognised in YD(Turkey), but the perspective from which it approached that exercise may have caused it to undervalue the need to respect the United Kingdom's international obligations. Fourth, it was accepted in YD(Turkey) that the delay had been caused by the applicant and not by his lawyers, but reliance on the private law-oriented approach of CPR r 3.9 may imply that in other cases an applicant would be fixed with the faults of his representatives. If that is the unacknowledged assumption it will have to be reviewed in the light of the guidance given by Arden LJ in FP(Iran) v SSHD, summarised in §18 above.

    Extension of time in the present type of case

22. All that said, under the rule in Kay v Lambeth LBC [2006] 2 AC 465[43] YD(Turkey) binds this court as to the meaning and effect of the Refugee Convention as applied to the specific problem in that case. I have therefore needed to pay respectful attention to that authority, not only for that reason, but because it is the general survey nearest to the problem that we have to resolve. But as already indicated our cases are different from any that have previously been before this court. Here, two factors stand out. First, permission to appeal has already been given by a Senior Immigration Judge. Second, failure to pursue that permission, leading to the need to apply for EOT, is the (serious) fault of the applicants' lawyers, and not of the applicants themselves. A grant of permission to appeal by the AIT is not, of course, conclusive as to whether the appeal will eventually succeed, or whether, to use the language of YD(Turkey), the applicant has a strong case that his appeal will ultimately be successful. But very considerable weight must be given to the view of the Senior Immigration Judges, specialists who deal with these matters on a daily basis: and that is without referring to the fact that amongst the judges who dealt with these cases are two, Dr Storey and Mr Ockleton, who are acknowledged leaders in their field. If the faults of the applicants' lawyers are permitted to be dispositive, then the judgement of those Senior Immigration Judges will have been frustrated without having been substantively tested in this court.

23. In the present, limited, category of case I would therefore adopt the following principles:

    i) There should be a presumption that where the AIT has granted permission to appeal to this court the appeal ought to be heard.

    ii) If a procedural fault causes this court to have to consider whether the appeal should proceed, the presumption may be displaced if it can be shown that the decision of the SIJ was plainly wrong, in the sense that it is clear that failure to pursue the appeal would not lead to the United Kingdom being in breach of its international obligations. The court on a preliminary application, such as the present, will have to make that assessment without actually hearing the appeal, but, as the present case shows, the enquiry is likely to come close to being in substance an appeal rather than just an application.

    iii) Length of delay, when caused by legal representatives, should not be relevant.

    iv) Where delay has been caused by the applicant the court is likely to look carefully at the light that that sheds on the credibility of the assertion that the applicant has a good claim for international protection. At the same time, the court will remind itself that if after that scrutiny such a claim is established, then the claimant is indeed entitled to international protection despite the domestic court's disapproval of his conduct or his way of promoting his case. That necessarily follows from the decision of this court in Danian v SSHD [2000] Imm AR 96.

24. In the light of those principles I now turn to the two particular applications before us.

    BR(Iran)

25. The way in which BR's case was presented did not make it easy for the IJ to deal with the matter. However, as Dr Storey pointed out in his grant of permission, the IJ does seem to have accepted that BR had attended the demonstration, and that he had subsequently been sought by the police. The issue was whether that was because he was or was seen as a KDPI activist, a factor that was acknowledged to be of interest, to put it at its lowest, to the authorities in Iran. Documents such as those relied on by BR can cause significant difficulties as to their reliability, and certainly the IJ would not have been obliged to take them at face value. But Dr Storey was, with respect, plainly right to hold that the IJ needed to address those documents. The IJ held, and the Secretary of State emphasised before us, that the general credibility of the applicant was destroyed by his evidence on what was a collateral matter, the issue of the checkpoints; but Dr Storey was alive to that criticism, and gave reasons why it was not dispositive at the permission stage.

26. What an eventual, and properly conducted, hearing will find as to the danger to BR if returned to Iran is another matter. I am however quite clear that Dr Storey was right in thinking that BR should have an opportunity to argue that such a hearing has not yet taken place. I would extend time in this case.

    MD(Iran)

27. This case is less straightforward. The IJ was required to deal with the two issues identified for reconsideration, as set out in §10 above. Mr Coppel, for the Secretary of State, said that that was what the IJ had done, and in terms that could not be faulted. First, as to whether MD's photograph did appear on the UFIN website, when the IJ said that "there is evidence which persuades me that the appellant's photograph may appear" there, he was accepting that fact as proved for the purpose of further consideration of the case. The Senior Immigration Judge in her grant of permission, set out at §12 above, had misunderstood what the IJ was saying. I think that there is force in that criticism. Second, in considering the consequences of the presence of the photograph on the website, Miss Eshun said that the IJ's conclusion that that was of no consequence was at odds with his findings in his §70 about MD's UFIN activities. Mr Coppel said that the IJ's conclusion was a logical and permissible finding, not significantly criticised by the applicant, that was open to the IJ because of his earlier conclusion that UFIN was not regarded as of any consequence by the authorities in Iran: see §11 above.

28. Miss Eshun set out her grant of permission in the context of the issue referred to the IJ. That reference must have assumed that association with UFIN was potentially relevant to an issue of persecution: otherwise, it could not have been an error of law to make no finding about MD's presence on the UFIN website. Starting from that base, Miss Eshun was entitled to think that it was arguably at odds with the facts set out in the IJ's §70 simply to hold that MD would be at no risk on return. I fully agree that the IJ had earlier made findings, from material before him, that UFIN was regarded as harmless and a joke. But although the IJ had earlier recited the holdings in KM, and the approach to them of the reconsideration panel, he does not reconcile the material on which he relied with the view of UFIN potentially at least assumed by the reconsideration panel. In the light of that, it is difficult to conclude that Miss Eshun should have regarded the IJ's earlier findings as dispositive.

29. This case comes near to being one in which the court should refuse to permit the appeal to proceed, but I am not prepared to hold that the Senior Immigration Judge's order was plainly wrong, to the extent that subsequent delay by the applicant's advisers should override the grant of permission. And I am also inclined to think that this court should respect what appears to have been the instinctive reaction of Deputy President Ockleton that the case merited reconsideration. In this case also I would extend time.

    Disposal

30. I would extend time in both cases. It will be desirable for both appeals to be heard during the present term, with a time-limit in each case of two hours. As a reassurance to the parties that the cases really will be treated de novo, and not with reference to this constitution's view formed during the applications, it may be better if no member of the present constitution sits on the appeals.

    Some general observations

31. This case has revealed a very unsatisfactory state of affairs. I quite understand the disquiet at the prospect of appeals being heard many months after they should have been promoted, with the responsibility for the delay resting with the appellants' advisers. With that in mind I offer some practical observations for future reference.

32. First, it appears to be the AIT's practice to notify grants of permission to appeal to this court simply by sending out the grant with a formal covering letter. Although solicitors should not need to be told, it would help to avoid what happened in these cases if the covering letter drew forceful attention to the requirement of filing the appellant's notice within fourteen days. And that is certainly desirable in the case of a litigant in person, such as BR was at the time of grant of permission, who might additionally be advised immediately to consult a solicitor or Citizens Advice Bureau. Special further steps may need to be taken in the case of a litigant in person who is shown by the preceding process not to be able to read the English language. I appreciate that such a service is not normally required of a court, but it would be pragmatically justified if it avoided what happened in the case of BR.

33. Second, in circumstances where the usual sanction for negligence by legal advisers, a negligence suit by the client, is not available, other controls must be used. The inattention of both firms of solicitors in these cases was not only the provision of inadequate professional services to their clients, but also a serious failure to discharge their duties to the court. With some hesitation I have decided not to take these cases further, but they must serve, to the extent that such is needed, as a wake-up call to the profession generally. In any future cases of delay the court will not hesitate to make references to the solicitor's professional body and, as a reference by a court, will expect the matter to be taken very seriously. In addition, the Legal Services Commission will need in such cases to consider seriously whether it can properly continue to support poor service with public funds. The Law Society and the Legal Services Commission may wish to consider whether they should bring the terms of this judgment formally to the attention of solicitors working in this field.

34. Third, the effect of delay, in a case where the appeal ultimately fails, is unmeritoriously to prolong the appellant's stay in this country. That is a burden on public funds, which is another reason why the action set out in §33 above will be required in future. Applicants should not, however, be unwise enough to assume that such an extension of stay will improve their position in any application under article 8. It is well recognised that time spent in this country when immigration status is known to be uncertain will not avail the applicant when the court applies article 8(2) to his case.

35. Fourth, because of the particular issues that arise when permission to appeal has already been granted, it will be easier in future in such cases if the application for EOT is listed with appeal to follow. That will enable the court to consider the EOT in the context of a full understanding of the issues that would be debated if EOT is granted. I should emphasise that that recommendation applies only in cases such as the present. Where the EOT application is starting from a lower base, in being made direct to this court because the AIT has lost jurisdiction (on which see §19 above) it would be an incorrect use of resources to require the preparation of a full appeal in every case.

    Lord Justice Rix:

36. I agree.

    Lord Justice Moses:

37. I agree.