REV 1 (revised 26 September 2006 to correspond to Approved Judgment)
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
B e f o r e :
|THE QUEEN ON THE APPLICATION OF UDDIN (1) ALI (2)||CLAIMANTS|
|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)
MR J MOFFETT (instructed by TREASURY SOLICITORS) appeared on behalf of the DEFENDANT
Crown Copyright ©
Part 1. Introduction;
Part 2. The Facts;
Part 3. The Present Proceedings;
Part 4. The Date for Listing Appeals;
Part 5. The Time Allowed for Lodging the Respondent's Bundle; Part 6. Conclusion
Part 1: Introduction
"(1) An appeal to the Tribunal may only be instituted by giving notice of appeal against a relevant decision in accordance with these Rules.
(2) Subject to paragraphs (3) and (4), notice of appeal must be given by filing it with the Tribunal in accordance with rule 55(1)...
(4) A person who is outside the United Kingdom and wishes to appeal against a decision of an entry clearance officer may give notice of appeal either-
(a) in accordance with paragraph (2); or
(b) by serving it on the entry clearance officer."
"(1) Subject to paragraph (2), when the Tribunal receives a notice of appeal it shall serve a copy upon the respondent as soon as reasonably practicable.
(2) Paragraph (1) does not apply where the notice of appeal was served on an entry clearance officer under rule 6(4)(b)..."
Rule 13 of the Procedure Rules provides:
"(1) When the respondent is served with a copy of a notice of appeal, it must (unless it has already done so) file with the Tribunal a copy of-
(a) the notice of the decision to which the notice of appeal relates, and any other document served on the appellant giving reasons for that decision;
(i) statement of evidence form completed by the appellant; and
(ii) record of an interview with the appellant,
in relation to the decision being appealed;
(c) any other unpublished document which is referred to in a document mentioned in sub-paragraph (a) or relied upon by the respondent; and,
(d) the notice of any other immigration decision made in relation to the appellant in respect of which he has a right of appeal under section 82 of the 2000 Act.
(2) Subject to paragraph (3), the respondent must file the documents listed in paragraph (1)-
(a) in accordance with any directions given by the Tribunal; and
(b) if no such directions are given, as soon as reasonably practicable and in any event not later than 2.00 p.m. on the business day before the earliest date appointed for any hearing of or in relation to the appeal...
(4) The respondent must, at the same time as filing them, serve on the appellant a copy of all the documents listed in paragraph (1), except for documents which the respondent has already sent to the appellant."
I shall refer compendiously to the documents identified in Rule 13(1) as "the respondent's bundle". I shall refer to the period within which the respondent's bundle must be lodged as "the submission period".
"(1) Any document which is required or permitted by these Rules or by a direction of the Tribunal to be filed with the Tribunal, or served on any person may be-
(a) delivered, or sent by post, to an address;
(b) sent via a document exchange to a document exchange number or address;
(c) sent by fax to a fax number; or
(d) sent by e-mail to an e-mail address,
specified for that purpose by the Tribunal or person to whom the document is directed...
(5) Subject to paragraph (6), any document that is served on a person in accordance with this rule shall, unless the contrary is proved, be deemed to be served-
(a) where the document is sent by post or document exchange from and to a place within the United Kingdom, on the second day after it was sent;
(b) where the document is sent by post or document exchange from or to a place outside the United Kingdom, on the twenty-eighth day after it was sent; and
(c) in any other case, on the day on which the document was sent or delivered to, or left with, that person."
"On receipt of an appeal, the ECO must first review the decision. The review must take into account any new information given in the notice of appeal or in any accompanying documents which were not provided at the time of the original application.
If the ECO decides that entry clearance can be given
If on review you conclude that the appellant is eligible to receive an entry clearance, you should inform the appellant or representative that entry clearance might now be issued. Enclose Form APP 9 Notice of Withdrawal of Appeal (Annex 27.5) and invite the appellant to complete and return it. A tick should be placed in the box identifying the type of appeal.
If the appellant chooses not to withdraw the appeal, this does not preclude the issue of an entry clearance. In these circumstances a letter to the Clerk to the Adjudicator must accompany the appeal documents explaining that an entry clearance has been issued...
If the ECO decides to maintain the refusal
If on review you conclude that there are no new factors which alter the decision, you should prepare the explanatory statement (also known as the appeal statement) which comprises all the necessary documents to be submitted to the appellant authorities. Full details of what is required are shown in Annex 27.3 and examples of completed explanatory statements are given at Annex 27.4. Explanatory statements should be despatched within three months of receipt of the applicant's appeal in settlement cases and one month for all other non-settlement explanatory statements.
Except in family visitor cases (see paragraph 27.17), all documents should be sent in triplicate direct to Appeals Processing Centre, Home Office, who are responsible for distribution of copies of the 'appeal bundle' to all interested parties in the UK. You should also send a copy of the appeal (except for the appellant's own documents, which he should already have in his possession) to the appellant."
Part 2: The Facts
"We are in receipt of your notice of pending appeal in the above matter. We note that you have allowed 148 days for the respondent to file their reasons for refusal and other documents relating to this appeal.
Our experience is that it takes unreasonably long time to list appeals after the expiry date for the respondent to file papers, in these cases, 20 October 2006. This we believe is because of the availability of court date.
To avoid delay, we request you to list the matter now for a hearing at a date soon after the 'file by' date i.e. 20 October 2006. If the case is listed now, it would avoid unreasonable delay and a date may be available close to 'file by' date."
On 13th June 2006 the AIT responded as follows to CCLC:
"Thank you for your recent request to bring forward the appeal hearing of the above named.
This appeal will be listed for a hearing at the earliest opportunity and you will receive notice of this date in due course.
However, if you feel this particular appeal has compelling, compassionate circumstances which warrant the appeal being progressed to the IAT for an early hearing date, please address your representations to the Duty Immigration Judge, including copies of all the relevant correspondence to the above address."
Part 3: The Present Proceedings
"Upon receipt of a notice of appeal against a refusal of entry clearance, administrative staff at the IAT's Operational Support Centre in Loughborough will issue a Notice of Pending Appeal (AIT11) to all parties (namely the appellant and the respondent Entry Clearance Officer ('ECO')... This notice directs the ECO to file the documents on which he wishes to rely within a specified period (the submission period). The submission period is 19 weeks where an application to enter the UK for the purpose of settlement (settlement application) has been made and 11 weeks where an application to enter the UK for temporary purposes (non-settlement application) has been made. The period is broken down as follows: 28 days (4 weeks) for transit between the AIT and the Entry Clearance Post (which reflects the provisions of rule 55 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (the Procedure Rules); 12 weeks (3 months) for the preparation of the bundle where an application has been made, and 4 weeks (1 month) for the preparation of the bundle where a non-settlement application has been made; 3 weeks for transit between the Entry Clearance Post and the AIT. These time limits were adopted by arrangement between the AIT and UK Visas during the establishment of the AIT, and reflect the previous arrangements that had been in place between UK Visas and the Immigration Appellate Authorities. I am informed by my colleague, Sarah Gane, Operational Support Manager of the AIT, that at the time the arrangements were agreed, UK Visas confirmed that the average time taken for a bundle to reach the AIT from an Entry Clearance Post was 21 days. In light of this confirmation, it was agreed by UK Visas that in respect of transit from the Entry Clearance Post to the AIT, the time period provided for by rule 55 of the Procedure Rules would be shortened from 28 days to 3 weeks. The time for preparing the bundle is the time required by the Entry Clearance Posts, and is set out in the Diplomatic Service Procedures at paragraph 27.4... Once this notice is served the file is then stored at the AIT's Operational Support Senior in Leicester awaiting receipt of the respondents bundle."
Part 4: The Date For Listing Appeals
(1) Whenever an appeal is lodged, the ECO will review his decision in the light of the grounds of appeal. This review may result in the grant of entry clearance and thus the appeal being withdrawn. Alternatively, the ECO may make certain concessions, thus limiting the scope of the appeal.
(2) The experience of the AIT is that listing at long intervals is often less effective and more prone to adjournment than listing hearings at shorter intervals.
(3) The AIT has a huge case load. According to the AIT's report published in April 2006, during the 10-month period April 2005 to 11th January 2006, there were 138,872 appeals to the AIT. Of these 54,585 appeals were against the decisions of ECOs. The AIT works at capacity. In other words cases are listed for every available Tribunal member on every available day.
(4) There is an obligation under the Rules to give priority to asylum appeals. This inevitably means that other appeals, including those against ECO decisions, are pushed further back in the queue.
Part 5: The Time Allowed For Lodging The Respondent's Bundle
Part 6: Conclusion