England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
(CROWN OFFICE LIST)

MR JUSTICE McCULLOUGH:

Mehmet Toprak applies for judicial review of the decision of the Immigration Appeal Tribunal on 29th June 1995 refusing him leave to appeal against the decision of a special adjudicator who had dismissed his appeal against the Secretary of State's refusal to grant him political asylum. The application raises a question about the time limit for the service of grounds of application for leave to appeal to the Tribunal.

Mehmet Toprak is an Alevi Kurd, aged 23. He applied for political asylum on his arrival in the United Kingdom on 9th September 1993. The Secretary of State rejected his claim on 15th July 1994. He gave notice of appeal within the prescribed period and his appeal was heard by a special adjudicator on 12th May 1995. The special adjudicator disbelieved much of his evidence and dismissed his appeal.

Her determination and reasons were sent out on Friday 16th June. The Applicant gave notice of application for leave to appeal to the Tribunal. This, together with a five page document headed Grounds of Appeal, which was referred to in the application, was served on the Tribunal on Tuesday 27th June - the last day permitted by the the Asylum Appeals (Procedure) Rules 1993: SI 1993 No 1661; see rules 13 (2) and 32 (l)(a) and (6).

The notice of application contained the words 'Further Grounds to follow'. The Applicant's solicitors were told that 27th June was the last day for their submission and that the time could not be extended. They nevertheless served on the Tribunal a document headed 'Further Grounds' on 28th June.

The Tribunal considered the application on 29th June, but refused to take account of the further grounds, being of the view that they had no power to do so.

Miss Nadine Finch, for the Applicant, submits that the Tribunal did have power to receive the further grounds and should have done so. She says that, as they had been received before the Tribunal considered the application, there was nothing to prevent the Tribunal from taking them into account. She says that, even if their receipt meant that the Tribunal could not determine the application on 29th June, their decision need not have been delayed beyond 4th July, the date by which the rules required the application to be determined.

Whether or not there was power to receive the further grounds must depend on the interpretation of the 1993 Rules.

Part I of the Rules is introductory. Part II (rules 4 to 11) deals with appeals to special adjudicators. Part III (rules 12 to 19) deals with appeals from a special adjudicator to the Tribunal. Part IV is immaterial. Part V (rules 22 to 32) is of general application.

It is instructive to look first at the principal provisions which deal with time limits in Part II.

Rule 5 (1) lays down a general time limit of 10 days for giving notive of appeal to a Special Adjudicator. This time may be extended. See Rule 5 (7), which provides:

"A special adjudicator may extend any time limit for giving notice of appeal provided he considers it necessary in the interests of justice."

Rule 5 (8) provides:

"An extension may be made under paragraph (7) notwithstanding that the period prescribed by the time limit has already expired."

Rule 7 provides:

"The notice of appeal may, with the leave of the special adjudicator, be varied by the appellant."

Rule 9 (1) provides:

"Subject to rule 31, a special adjudicator shall detemine an appeal not later than 42 days after receiving notice of the appeal."

Rule 31, the terms of which I will consider later, permits a special adjudicator to extend this period.

The principal difference between Parts II and III is that an appeal to the Tribunal, unlike an appeal to a special adjudicator, may only be brought with the leave of the Tribunal.

Rule 13 (1) provides:

"An appeal shall be brought only with the leave of the Tribunal."

It follows that if leave is refused there is no appeal and

that a refusal of leave is not the determination of an appeal.

Rule 13 (2) provides:

"An application for leave to the Tribunal shall be made not later than 5 days after the person making it ("the appellant") has received notice of the determination against which he wishes to appeal."

Rule 13 (4) provides:

"An application for leave shall be determined not later than 5 days after its receipt by the Tribunal."

Rule 14 (1) provides:

"The application for leave to appeal shall be deemed to be the appellant's notice of appeal and may (as such notice of appeal) be varied by the appellant with the leave of the Tribunal."

Rule 16 provides:

"Subject to rule 31, every appeal under this Part shall be determined not later than 42 days after the date of service on the Tribunal of the appellant's notice of appeal."

Rule 31, so far as material, provides:

"(1) Where under these Rules - (a) a special adjudicator or the Tribunal is required to determine an appeal; at or within a prescribed time, the special adjudicator or (as the case may be) the Tribunal may if necessary extend the time so prescribed to enable it fairly to determine the appeal ... (2) An extension may be made notwithstanding that the time prescribed by the time limit in any case has already expired."

There is thus a broad similarity between the provisions for hearing an appeal to a special adjudicator and those for hearing an appeal to the Tribunal. In each case there is power to give leave to vary the notice of appeal (rules 7 and 14 (1)) and power to extend the period of 42 days for the determination of the appeal (rule 31).

There are, however, significant differences between the provisions governing appeals, whether to a special adjudicator or to the Tribunal, and those governing applications for leave to appeal to the Tribunal. Although leave may be given to vary a notice of appeal to an adjudicator (rule 7) and leave may be given to vary a notice of appeal to the Tribunal once it has been deemed to become such a notice, i.e. after leave to appeal has been given (rule 14 (1)), there is no provision for giving leave to vary that notice while it is still a notice of application for leave to appeal. The time for giving notice of appeal to a special adjudicator can be extended (rule 5(7)), but there is no comparable provision for extending the time within which a notice of application for leave to appeal must be given. The stage of application for leave to appeal is governed by much stricter time limits: 5 days to give notice of application (rule 13 (2)) and 5 days for the determination of the application (rule 13 (4)), and, unlike the time for determining an appeal at either level, rule 31 does not permit time to be extended for the determination of an application for leave to appeal.

I would accept - although the question does not arise for decision - that further grounds in support of a notice of application for leave to appeal to the Tribunal can be submitted within the 5 days prescribed by rule 13 (2), but it is clear, from a consideration of the rules as a whole, that Parliament did not intend to permit the submission of further grounds after the expiry of the 5 days prescribed by rule 13 (2).

A consideration of the Immigration Appeals (Procedure) Rules 1984: SI 1984 No 2041 reinforces this conclusion.

The 1984 Rules are referred to in a number of the provisions in Parts I and V of the 1993 Rules. In general the 1984 Rules do not apply to asylum appeals (rule 3 (2) of the 1993 Rules), but rule 22 specifically applies some of the 1984 Rules to asylum appeals and rules 23 to 28 of the 1993 Rules amend the application of those provisions in the 1984 Rules which are made applicable by rule 22.

The 1984 Rules have the same five part structure, with appeals to adjudicators being covered in Part II and appeals to the Tribunal in Part III. As in the 1993 Rules, an appeal to the Tribunal requires the leave of the Tribunal (rule 14 (1)). The feature of the 1984 Rules which is significant for present purposes is rule 16 (4) in Part III. This provides:

"The grounds of an appeal or application contained in particulars furnished in accordance with paragraph (1) above may be varied or amplified during the course of the appeal or application." (Emphasis added.)

This provision must have been in mind when rule 14 (1) of the 1993 Rules was drafted. It is clear that the omission from rule 14 (1) of the 1993 Rules of any reference to an application was deliberate.

Accordingly Miss Finch's submission cannot be accepted: the Tribunal was right: it had no power to receive the further grounds submitted after the expiry of the 5 days.

Miss Finch says that it follows from my decision that the application must be dismissed. Mr Jay, for the Secretary of State, says that her concession may not be right. His point is that the Tribunal, in deciding whether or not to give leave to appeal, is obliged to consider a point of law which it thinks arguable even if it has not been adverted to in the grounds of application.

In that connection Mr Jay invites the court to consider the following paragraph in the determination and reasons of the special adjudicator.

"I next turn to his objection to military service. I note that there was no challenge to the Secretary of State's understanding that there is no policy of sending conscripts of Kurdish ethnic origin to do their military service in that area of Turkey currently under a state of emergency. I do not believe that the appellant's objection to military service is based on a genuine moral conviction. Furthermore no evidence was put before me that the appellant would suffer disproportionately severe punishment for failing to do his military service."

I accept Mr Jay's submission that the paragraph reveals no error of approach. The essence of the special adjudicator's reasoning in this paragraph, as elsewhere, was that she did not believe the applicant. As I have said Miss Finch, does not suggest the contrary.

The application is dismissed.

MISS FINCH: My Lord, I am obliged. The Applicant is legally aided.

MR JUSTICE McCULLOUGH: You will want to be taxed according to the Act?

MISS FINCH: My Lord, yes.

MR JUSTICE McCULLOUGH: Mr Jay is sitting firmly on his seat.

MR JAY: My Lord, there is no point in me seeking an order. My Lord, it has been drawn to my attention, and I should tell your Lordship this, that the Treasury Solicitors now act for the Home Secretary and not the Immigration Appeal Tribunal in this case.

MR JUSTICE McCULLOUGH: Say that again?

MR JAY: The Treasury Solicitor, my Lord, now acts for the Secretary of State and not the Immigration Appeal Tribunal.

MR JUSTICE McCULLOUGH: But the Respondent is the Tribunal? You appear for the Tribunal?

MR JAY: I do not. Following a case that happened several years ago, the Lord Chancellor has decreed that these cases be -- although the main Respondents are the Tribunal, I now appear, and anyone in my position now appears, for the Secretary of State for the Home Department.

MR JUSTICE McCULLOUGH: I can see that is convenient from the point of view of who should instruct counsel, and where the expertise -- as it were, of where the manpower lies, but I thought it was important constitutionally for us to remember that the Immigration Appeal Tribunal like the Immigration Adjudicator, was not part of the government?

MR JAY: My Lord ----

MR JUSTICE McCULLOUGH: I will be corrected.

MR JAY: It is precisely for that reason that the Lord Chancellor has decreed, in my submission correctly, that the parties before the Judicial Review Board should be the same as the parties at the hearing below. Obviously the parties to the original appeal----

MR JUSTICE McCULLOUGH: I see. So what has happened is that the Immigration Appeal Tribunal has chosen not to be represented and the original respondent, for example the local planning authority, chose the effect of a decision that....

MR JAY: Planning cases, my Lord, are still in a slightly different category since there is not -- the first respondent is represented by----

MR JUSTICE McCULLOUGH: Yes, the Secretary of State will carry the burden.

MISS FINCH: My Lord, may I point out that on the last occasion this hearing was adjourned because the Tribunal wished to be represented?

MR JAY: My Lord, my learned friend has slightly misunderstood the position. Mr Justice Popplewell adjourned the application so that the Tribunal could give consideration as to whether it wished to be represented. The Secretary of State was appearing at that stage. I represented the Secretary of State. These are technical points, but I have been asked, quite rightly, to draw them to your Lordship's attention.

MR JUSTICE McCULLOUGH: Does this mean that when the judgment is corrected it ought to say "Mr Jay, who appears on behalf of the Secretary of State"? I suppose it should. I would be grateful if the Court Reporter would note that. Thank you both very much.