England and Wales High Court (Administrative Court) Decisions

REV 1 (revised 26 September 2006 to correspond to Approved Judgment)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		7th August 2006

1. MR JUSTICE JACKSON: This judgment is in six parts, namely:

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

2. This is an application for judicial review of listing decisions taken by the Asylum and Immigration Tribunal in relation to two appeals against decisions made by an entry clearance officer in Bangladesh.
3. The applicant for entry clearance in the first case is Mohammed Suhel Miah, to whom I shall refer as "Mr Miah". The applicant for entry clearance in the second case is Ms Marina Pervin Munni, to whom I shall refer to as "Ms Munni". The proceedings in this Court are brought not by the applicants for entry clearance but by their respective spouses who are British citizens.
4. The claimant in the first action, who is the wife of Mr Miah, is Ms Banu Uddin, to whom I shall refer as "Ms Uddin". The claimant in the second action, who is the husband of Ms Munni is Eamir Ali, to whom I shall refer as "Mr Ali".
5. In this judgment I shall refer to the Asylum and Immigration Appeal Tribunal as "the AIT". I shall use the abbreviation "ECO" for entry clearance officer. The Camden Community Law centre, which is acting for the claimants in both actions will be referred to as "CCLC". I shall refer to the Asylum and Immigration Tribunal (Procedure) Rules 2005, as "the Procedure Rules".
6. Rule 6 of the Procedure Rules provides as follows:

"(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."

7. Rule 12 of the Procedure Rules provides:

"(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;

(b) any-

(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".

8. Rule 23 of the Procedure Rules sets out an accelerated procedure for asylum appeals. These must generally be heard within a period of 28 days from commencement.
9. Rule 55 of the Procedure Rules provides:

"(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."

10. The Foreign and Commonwealth Office publishes for the guidance of its staff a manual or series of manuals entitled Diplomatic Service Procedures. These are generally abbreviated to "DSPs". The section of the DSPs concerning appeals against entry clearance decisions includes the following passage:

"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."

11. A body called "UK Visas" features occasionally in this case. UK Visas is a directorate set up jointly by the Foreign and Commonwealth Office and the Home Office. It gives instructions to ECOs around the world.
12. After these brief introductory remarks it is now time to turn to the facts.

Part 2: The Facts

13. In 2005 Mr Miah applied for entry clearance to settle in the UK on the grounds that he was married to Ms Uddin, a British citizen resident in the UK. On 9th November 2005 an ECO at the British High Commission in Dhaka refused Mr Miah's application on the grounds that he was not satisfied that Mr Miah and any dependants could be adequately maintained without recourse to public funds.
14. By a notice of appeal lodged on 15th December 2005 Mr Miah appealed to the AIT against the ECO's decision. On 16th December 2005 the AIT issued a direction that the ECO, as respondent to the appeal, should file and serve the respondent's bundle by 28th April 2006.
15. On 7th April 2006 CCLC wrote to the AIT requesting a hearing date in the week of 12th June. On 2nd May the AIT wrote to CCLC to say that they had not yet received the respondent's bundle and that CCLC would be informed when the matter was listed for hearing. On 8th May 2005 the AIT listed Mr Miah's application for hearing on 25th August, and sent a notice to this effect to both parties. On the same day the AIT issued a notice stating that the ECO had not yet filed the respondent's bundle, that the documents should be supplied without further delay and that, in default, the appeal may be determined in the absence of the documents.
16. On 24th May 2006 the ECO in Dhaka despatched the respondent's bundle to the AIT. This bundle comprises an explanatory statement by the ECO dated 27th February 2006, together with the following seven appendices: appendix A, completed Visa application form; appendix B, notice of refusal APP 200; appendix C, notice of appeal; appendix D, previous appeal determination; appendix E, letter from Job Centre Plus; appendix F, copy of Halifax passbook; appendix G, Halifax bank statements. The ECOs explanatory statement together with lists of appendices spans just over one page.
17. The delay between 27th February (when the explanatory statement and its annexes were prepared) and 24th May (when the bundle was despatched) is surprising. The ECO states in his skeleton argument that the reason for this delay was the very large backlog of appeals which the Visa Section of the High Commission was trying to clear.
18. Let me turn now to the application of Ms Munni. In early 2006 Ms Munni applied for entry clearance to settle in the UK on the grounds that she was married to Eamir Ali, a British citizen, resident in the UK. On 8th May 2006 an ECO at the British High Commission in Dhaka refused Ms Munni's application on the grounds that he was not satisfied that Ms Munni, her husband and any dependants would be able to maintain themselves adequately without recourse to public funds. By a notice of appeal lodged on 25th May 2006 Ms Munni appealed to the AIT against the ECO's decision. On 9th June the AIT issued a directions that the ECO, as respondent to the appeal, should file and serve the respondent's bundle by 20th October 2006.
19. On 12th June 2006 CCLC wrote to the AIT as follows:

"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."

20. Ms Uddin, as the wife and sponsor of Mr Miah, was aggrieved by the delay in the listing of Mr Miah's appeal. Mr Ali, as the husband and sponsor of Ms Munni, was aggrieved by the delay in the listing of Ms Munni's appeal. Accordingly, both Ms Uddin and Mr Ali commenced the present proceedings.

Part 3: The Present Proceedings

21. By a claim form issued on 2nd June 2006 Ms Uddin applied for an order quashing the decision to list Mr Miah's appeal on 25th August and/or for a declaration that the AIT had listed the appeal in reliance on an unreasonable practice. By a claim form issued on 12th July 2006, Mr Ali applied for an order quashing the AIT's decision, refusing to list Ms Munni's appeal for hearing and/or a declaration that that decision was taken in reliance on an unreasonable practice.
22. The Lord Chancellor was joined as an interested party in both appeals. The Lord Chancellor has filed an acknowledgment of service in the Uddin action which explains the listing practice of the AIT in some detail. The Lord Chancellor maintains that the listing practice is reasonable and accordingly that the claims of Ms Uddin and Mr Ali should be dismissed. The AIT had taken no party in the proceedings.
23. Ms Rebecca Cooper, the listing and performance manager of the AIT has filed a witness statement in support of the Lord Chancellor's position in both actions. Ms Cooper states as follows in paragraph 3 of her statement:

"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."

24. Ms Cooper goes on to explain that an appeal is listed for hearing upon the earlier of (a) receipt of the respondent's bundle, or (b) expiry of the submission period. The period between the date of listing and the date of hearing will depend upon the volume of pending appeals but will not be less than 8 weeks.
25. The ECO in Dhaka has also been joined as an interested party in these proceedings. Although the ECO has not filed a witness statement or been represented at the hearing, he has nevertheless lodged a skeleton argument which contains a helpful background information. According to the ECO the High Commission in Dhaka, during the finance year 2005 to 2006, received 39,421 entry clearance applications. That is an average of over 3,000 per month. Of those applications 18,376 were refused. Those refusals resulted in a total of 5,729 appeals received by the High Commission in Dhaka. That is an average of about 470 appeals per month.
26. Both actions in the Administrative Court were listed for a rolled hearing on Friday 4th August 2006. At an early stage of that hearing I granted both claimants permission to proceed with their claims. Thereafter Ms Judith Farby, counsel for the claimants, and Mr Jonathan Moffett, counsel for the Lord Chancellor, developed their full submissions.
27. Those submissions centred upon two issues. The first issue is whether it is reasonable for the AIT to refuse to list appeals until the respondent's bundle has been lodged or the time for doing so has expired. The second issue is whether it is reasonable for the AIT to allow ECOs 19 weeks for lodging the respondent's bundles in settlement appeals. I said that I would consider counsel's submissions on the issues over the weekend and give judgment on Monday morning. This I now do.

Part 4: The Date For Listing Appeals

28. The claimants' case is that, given the length of time allowed to respondents to lodge their bundles, it is irrational and unlawful for the AIT to refuse to list hearings until the documents have been lodged, or the time for doing so has expired. This policy causes the hearings of entry clearance appeals to be unduly delayed. In Ms Uddin's case 8 months and 10 days will elapse between the lodging of Mr Miah's notice of appeal and the hearing of his appeal. In Mr Ali's case a similar period will elapse between the lodging of Ms Munni's notice of appeal and the hearing of her appeal.
29. Ms Farby, on behalf of the claimants, points out that under the present policy the ECO can substantially affect the hearing date by choosing when to lodge his documents within the 19 weeks' submission period. She submits that that cannot be right. Ms Farby in her skeleton argument makes the additional point that an ECO can delay the hearing of an appeal still further by failing to comply with the AIT's directions. This latter point, however, is not correct: if the ECO fails to lodge his documents within the period ordered, the AIT will proceed to list the appeal for hearing in any event.
30. On behalf of the Lord Chancellor four points were made in justification of the AIT's approach to listing. I would summarise these points as follows:

(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.

31. I have come to the conclusion that there is merit in those four points urged on behalf of the Lord Chancellor. In the light of those four points, it cannot be said that it is irrational for the AIT to wait until receipt of the respondent's bundle, or expiry of the submission period, before listing entry clearance appeals for hearing. In reaching this conclusion, I bear in mind that the AIT is a specialist tribunal, with a wealth of relevant experience, and is uniquely well-placed to decide upon an appropriate listing policy. The AIT has to weigh up the conflicting interests of many groups of litigants who are pressing to be heard. The AIT is, quite understandably, concerned to list matters for hearing only when it is known that they are likely to be effective.
32. I also bear in mind that the question of when a case should be listed for substantive hearing is what may be called one of the old chestnuts: some courts or tribunals list certain categories of case for substantive hearing immediately upon issue. Some courts or tribunals wait until the pleadings or statements of case are complete. Some courts or tribunals wait until a later stage. There is no universal answer to this age old problem. There are pros and cons for each approach. Ultimately, each court or tribunal must adopt a listing policy which is best suited to the type of litigation which it handles. In those circumstances, it is quite impossible to say that the approach adopted by the AIT for entry clearance appeals is irrational.
33. Having considered all of the evidence filed by the parties, I reject the submission that the AIT's approach is either irrational or unlawful in this regard. There is, however, one point to which I wish to draw attention arising out of this issue. The AIT operates a system to expedite appeals in cases where there are compelling or compassionate circumstances. Requests for expedition under this scheme should be sent to the Duty Immigration Judge at the AIT's Operational Support Centre in Loughborough. Unfortunately, the existence of this scheme is not advertised. Ms Farby points out that the scheme is not mentioned in the Procedure Rules or in any Practice Direction. Indeed, the scheme is not even mentioned on the AIT's website. This is not a ground for this Court to grant judicial review. Nevertheless, I recommend to the staff of the AIT that the scheme for expedited hearings ought to be more widely and more effectively advertised to tribunal users.
34. Let me now draw the threads together. For the reasons set out earlier I have come to the conclusion that the AIT's practice of not listing entry clearance appeals until the ECO has lodged his bundle, or until the time for doing so has expired, is a lawful practice. Accordingly, this ground of the claimant's claim for judicial review must be dismissed.

Part 5: The Time Allowed For Lodging The Respondent's Bundle

35. As explained by Ms Cooper, in settlement appeals the time which the AIT allows for lodging the respondent's bundle is 19 weeks. This period is made up as follows: 4 weeks for the AIT's notice of pending appeal (containing directions) to reach the entry clearance post; 12 weeks for the preparation of the respondent's bundle; 3 weeks for transit between the entry clearance post and the AIT. Ms Farby does not criticise the initial period of 4 weeks, nor the final period of 3 weeks. These time periods flow from Rule 55(5) of the Procedure Rules. Nevertheless she does criticise the period of 12 weeks allowed for preparation of the respondent's bundle. She submits that this is a remarkably long time for the exercise of assembling the modest number of readily available documents which are identified in Rule 13(1) of the Procedure Rules. Ms Farby contends that the proper period for the AIT to allow for this exercise is one of 5 weeks.
36. Turning to the evidence, Ms Farby submits that the AIT has unquestioningly adopted a time limit which was established under a former and different regime. Under the old rules an appeal against an ECO's decision could only be lodged at the entry clearance post, and could not be lodged at the Immigration Appeal Tribunal. A period of 12 weeks was apparently allowed for the ECO to compile the documents which he then had to forward to the AIT. Ms Farby also draws attention to the language used by Ms Cooper in paragraph 3 of her statement. Ms Farby submits that that paragraph reads as if the AIT has uncritically adopted the time period stipulated by the Foreign and Commonwealth Office in the DSPs. As Ms Farby graphically put it in her closing speech, the executive tail must not wag the judicial dog.
37. I can see some force in Ms Farby's arguments. The wishes and convenience of one litigant, however large, important and busy that litigant may be, should not be allowed to exert disproportionate influence over the procedures of any court or tribunal. The period of 12 weeks allowed by the AIT for preparing the respondent's bundle is substantially longer than the time allowed under the Procedure Rules for any other litigant to take any step in proceedings. On the other hand, as Mr Moffett points out, these judicial review proceedings have been brought in order to challenge the listing practice of the AIT. They have not been brought to challenge the directions which the AIT generally gives to ECOs pursuant to Rule 13(2)(a) of the Procedure Rules. Mr Moffett states that if those directions under Rule 13(2)(a) were the target of the proceedings, the Lord Chancellor may have put in fuller evidence concerning the workload of the ECOs and the constraints under which they operate.
38. Mr Moffett places reliance on the huge number of applications and appeals which have to be processed at entry clearance posts, as outlined in the ECO's skeleton argument. Mr Moffett also points out that the standard directions given by the AIT have been approved by the President of the AIT, who is a High Court judge. Furthermore, the President and senior members of the AIT's staff attend periodic stakeholder meetings with court users and practitioners at which matters such as this are ventilated (see the minutes of those meetings). So the President and senior members of the AIT staff are fully aware of the concerns and the conflicting interests of different groups of court users.
39. Having considered all of the evidence and also counsel's submissions on this issue, I have come to the conclusion that the AIT's practice of allowing ECOs 19 weeks in which to lodge respondents' bundles is not so favourable to one party or so harsh on the other party as to be either irrational or unlawful. The AIT is entitled to take the view that 19 weeks is genuinely required for lodging respondents' bundles in view of the logistical difficulties of ECOs. Nevertheless, although the AIT is entitled to take that view, I very much hope that the AIT will reconsider the appropriateness of its standard directions in the light of the evidence and the submissions which have been put forward in these proceedings. The AIT, as a specialist tribunal, is in a much better position than this court to determine precisely how long should be allowed for the various steps in entry clearance appeals.
40. Let me now draw the threads together. For the reasons set out above, I am not prepared to hold that the AIT is acting unlawfully in allowing ECOs a period as long as 19 weeks for the lodging of respondents' bundles. It therefore follows that the second ground of the claimants' claims for judicial review must be dismissed.

Part 6: Conclusion

41. I am grateful to both counsel for their assistance in this case. I can understand the concerns which have been expressed, both by court users and by practitioners about the delays which occur in the listing of entry clearance appeals. Nevertheless, for the reasons set out in parts 4 and 5 above, I do not accept that the listing decisions made in the two cases under review were unlawful. Accordingly these proceedings for judicial review must be dismissed.
42. MR MOFFETT: I am very grateful for that. In the light of your Lordship's judgment, I would ask for the Lord Chancellor's costs in defending this matter.
43. MISS FARBY: My Lord, might those be subject to a football pools order because both my clients are legally aided.
44. MR JUSTICE JACKSON: Yes, you are quite right, yes. I make an order for costs subject to the usual conditions mentioned by Ms Farby. Would you draw it up in the correct form, please?
45. MISS FARBY: May I have a detailed assessment of both claimants costs?
46. MR JUSTICE JACKSON: Yes.
47. MISS FARBY: I am grateful.