QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF KAMAU||(CLAIMANT)|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS J ANDERSON (instructed by Treasury Solicitors) appeared on behalf of the DEFENDANT
Crown Copyright ©
"I confirm that on 19th June 2001 I prepared the appeal bundle to be sent to the Immigration Appeal Tribunal at Taylor House, Rosebery Avenue in London. The following documents, which I attach to the statement, were placed in the bundle ... [they comprised a fax cover sheet, a notice of appeal comprising three pages, the determination and the grounds of appeal]. The total number of pages came to 14. I confirm that I personally sent the bundle to the IAT on the fax number provided and that, following my general practice, I kept a copy of the fax history report contained at page 13 of the bundle. I confirm that this history report relates to this appeal bundle."
"I confirm that, so far as appears from our file, no application for leave to appeal was received. The Solicitors Sutovic and Hartigan, who acted for the Claimant at all material times, are aware of the Tribunal's practices and would no doubt have raised the alarm if an application had been sent, but not acknowledged as received."
"The evidence indicated that an application for permission to appeal was made on 19 June 2001. In circumstances which are unexplained nothing seems to have happened on that application despite the passage of almost two years. Unless and until that application is determined and in the absence of evidence showing that no application to appeal was made the claimant demonstrates an arguable case for the relief claimed."
It is, I think, fair to say that Blackburne J had not seen the acknowledgment of service filed by the defendant, which was late.
"18-(1) An appeal from the determination of an adjudicator may be made only with the leave of the Tribunal.
(2) An application for leave to appeal shall be made not later than 10 days ... after the appellant has received written notice of the determination against which he wishes to appeal.
(3) A time limit set out in paragraph (2) may be extended by the Tribunal where it is satisfied that because of special circumstances, it is just for the time limit to be extended.
(4) An application for leave to appeal shall be made by serving upon the Tribunal the appropriate prescribed form [and then the relevant provision for that form and the documentation are set out].
(5) When an application for leave to appeal has been made, the Tribunal shall notify the other parties."
We now can move to rule 46, which is headed "Notices etc":
"46-(1) Any notice or other document required or authorised by these Rules to be sent or given to any person or authority may be delivered or sent by post to an address, or sent by fax to a fax number, specified by the person or authority to whom the notice or document is directed."
Then rule 48, headed "Calculation of time":
"(1) This rule applies to any notice or other document sent, served or given under these rules."
Subrule (2) indicates when documents are deemed to be received in certain circumstances which do not apply in the instant case. Subparagraph (4), which does apply, says that:
"Where a notice of appeal is sent by post or by fax to the address or fax number specified in the notice of decision, it shall be deemed to have been given on the day on which it was received at that address or fax number."
Then subrule (5), which seems to me crucial in this particular case:
"A notice or other document is received by the appellate authority when it is received by any person employed as a clerk by that authority."