England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		5 August 2010

HH Judge Anthony Thornton QC:

1. The claimant is applying for an order setting aside the preliminary decision of the Asylum and Immigration Tribunal ("AIT") dated 17 April 2009. This decision dismissed the claimant's application to extend time for giving notice of appeal against the decision of the Secretary of State for the Home Department ("SS") dated 18 July 2008. The SS's decision had dismissed the claimant's application for asylum that had been made for both herself and her daughter on 26 June 2008. These proceedings against the AIT were formally started when the AIT was joined as a second defendant to judicial review proceedings that had previously been started against the SS on 17 April 2010. The claimant was granted permission to apply for judicial review against the AIT on 31 July 2010. The AIT had notified the Administrative Court that it did not intend to take any part in the proceedings in a letter dated 30 July 2009. It also notified the claimant's current solicitors that it did not intend to take any part in the hearing of this application for judicial review in a letter dated 8 April 2010.
2. The application is set out in an additional grounds document which was not supported by a witness statement from the claimant. However, it has been possible to ascertain the relevant factual background from the documents provided to the court including the additional grounds document and skeleton submissions, the notice of appeal lodged with the AIT, the SS's decision letter dated 18 July 2008, the grounds relied on in the application against the SS and the SS's acknowledgment of service and relevant correspondence.

Factual Background

3. The claimant is a citizen of Sri Lanka and a Tamil who was born on 13 May 1987. She does not speak any English, her only language is Tamil. She married on 2 April 2005 when she was nearly eighteen. She gave birth to a daughter on 8 January 2006. She arrived with her daughter in the United Kingdom on a flight from Colombo on 30 May 2008 which was arranged for her by an agent. Before leaving Colombo, she had applied for and been granted a visitor's visa for the stated purpose of attending her father's funeral in the United Kingdom and provided a copy of his death certificate in support of this application.
4. On arrival, the claimant went to stay with her sister who was granted asylum in the United Kingdom in 2001 and who lives in Milton Keynes. The claimant claimed asylum for both herself and her daughter on 26 June 2008. She was given a screening interview on 23 June 2008 and an asylum interview on 8 July 2008. She then instructed her first solicitors, Immigration Advisory Service, who she had been introduced to by her sister. That firm prepared a witness statement dated 15 July 2008 that was submitted to the SS with a covering letter notifying the SS of their involvement with the claimant's asylum claim. The SS refused her and her daughter's asylum application in a detailed letter dated 18 July 2008
5. The essence of the claimant's account in support of her asylum claim was that she had a well-founded fear of persecution if she and her daughter were returned to Sri Lanka. This arose from the treatment that she and her daughter and husband had received from the Sri Lankan authorities and from the LTTE, from the threats that she had received from both sides in the Sri Lankan civil strife and from her perception of the risk to both herself and her daughter from both sides based on their knowledge of her past dealings with both sides and of the adverse perception that both sides would have of her. She was also the subject of kidnap threats and an attempted rape and her daughter had been badly assaulted by the same assailants. These acts were a continuation of persecution that she had suffered previously and which she remained in fear of. Her husband had, on her account, left their home unexpectedly in February 2007 due to threats that he had sustained from the LTTE and the claimant had not heard from him since. She explained that he had left because of his fear of reprisals from the LTTE due to his actual or perceived involvement with the Sri Lankan authorities. The claimant's brother had also been taken away by the LTTE previously and she had not heard from him since.
6. The refusal decision was sent to the Immigration Advisory Service and a copy was also sent to the claimant's notified home address. The claimant claims never to have received her copy of the decision and, in any case, she had left everything for her solicitors to deal with. The refusal was based on credibility grounds and the claimant has much to explain. However, the claimant's claim for asylum cannot be said to be self-evidently hopeless. The time for lodging a notice of appeal against that decision with the AIT expired on 1 August 2008.
7. The Immigration Advisory Service saw the claimant on 24 July 2008. The claimant's second solicitors, MNS Law, failed to obtain any information about the Immigration Advisory Service's actions and advice in relation to the claimant's asylum claim. They wrote to them on 16 April 2009 requesting this information and received no response. It is therefore not known why the former solicitors wrote to the SS on 28 August 2008 and informed the SS that they had ceased to act for the claimant. The claimant does not have a copy of this letter.
8. Presumably because she had heard from her former solicitors that they would no longer act for her, the claimant was introduced to MNS Law, based in Wembley and they agreed to act for her. The two partners in this firm are Tamil speakers. The date that MNS Law was first instructed has not been provided nor is it clear how the claimant came to know of that firm but her first dealings with that firm must have been about two to three weeks before they sent the SS a letter dated 19 September 2008. This letter submitted what MNS Law subsequently described as a "fresh application" for asylum based on what was described as "new evidence". This application contained a lengthy submission setting out why the new evidence made out her entitlement for asylum. No reference was made in the letter to the decision dated 18 July 2008. The claimant contends that she was not advised by the Immigration Advisory Service or MNS Law that her appeal against the SS's first decision was never lodged with the AIT
9. It was at about this time that the claimant claims to have come into contact with a man that she had known back home and who had assisted her in arranging to leave Sri Lanka. According to her, this man suggested that he would take the claimant and her daughter to Canada where she could successfully claim asylum. She agreed, in return for this further assistance, that if she succeeded in obtaining asylum in Canada, she would transfer land she held in Sri Lanka into this man's name as a reward. There is no evidence of what land she was referring to or whether it was in her gift to transfer this land to another. Whatever the truth of this account, the claimant was arrested at Heathrow with her daughter apparently attempting to fly to Canada. She was in possession of a false German passport in her name which she claimed had been given to her by the man who had talked her into this scheme who managed to board the plane and make his getaway. The claimant was arrested on 28 October 2008 having been stopped boarding the plane. She was remanded in custody and her daughter was taken to live with the claimant's sister, her aunt. The claimant was charged with being in possession with false identity documents and was sentenced on 3 November 2008 to a term of nine months imprisonment. She states that she did not inform MNS Law or her sister of this plan prior to her setting off for Canada and her arrest at Heathrow. A different firm of criminal solicitors acted for her in the criminal proceedings.
10. MNS Law had received no answer to their fresh claim application and, on 4 December 2008, they informed the SS that the claimant had been sentenced for possessing a false passport and that she was eligible for release on Home Detention Curfew ("HDC") on 31 December 2008. However, she would not be released due to her immigration status. The SS was requested to facilitate her release on HDC pending the determination of her fresh asylum application. The SS responded to this letter on 19 December 2008 by rejecting the fresh application dated 19 September 2008 and by stating that the further application amounted to an attempt to re-open the original decision even though the claimant's appeal rights were exhausted.
11. MNS Law responded with a letter dated 30 December 2008. This letter was, in effect, both a request to grant the claimant an opportunity to appeal against the July 2008 decision and a request to reconsider the fresh claim application.
12. The claimant remained in prison after 31 December 2008, despite being eligible for HDC and her daughter continued to be looked after by her sister. The claimant had no contact with MNS Law whilst in prison and she was obviously lonely and feeling desperate at her plight. So much so that she arranged for someone in prison, presumably another prisoner, to write on her behalf and in her name to Amnesty International on 6 February 2009 a despairing letter which gave details of her unsuccessful attempt to claim asylum and of her foolish and unsuccessful attempt to move to Canada with her daughter. She stated:

"I am a helpless person. Please stop my detention by immigration and possible removal on humanitarian grounds considering the on-going war, the plight of civilians especially a vulnerable person like me and my child in Sri Lanka."

13. On 4 March 2009, the SS wrote to MNS Law refusing to reconsider the fresh claim application and informed MNS Law that the claimant's appeal rights stemming from the July 2008 refusal decision had been exhausted on 1 August 2008. On 7 March 2009, the SS set removal directions for 23 March 2009. The claimant was released from the custodial element of her sentence on 8 March 2009 and was immediately made subject to immigration detention. On 9 March 2009, the removal directions were cancelled due to third party disruption. On the same day, MNS Law, having received the SS's letter dated 4 March 2009 and seemingly oblivious to the setting of removal directions, replied to the SS by applying for the right to appeal the 18 July 2008 decision. They wrote:

"In the meantime, however, we can ask [the writer of the decision letter dated 18 July 2008] to exercise her discretion by giving our client a fresh appeal right to challenge the decision of [the writer] to refuse our client's fresh asylum claim since the new evidence have not been properly assessed against the current situation in Sri Lanka."

14. On 17 March 2009 the claimant and her daughter were given temporary admission and she was granted bail. On 15 April 2009, removal directions were again set for 18 April 2009 and the claimant was again detained, this time with her daughter. The claimant contacted MNS Law from the Immigration Detention Centre in desperation since she was about to be removed and, for the first time, MNS instructed counsel in this whole matter. Counsel advised that an injunction should be sought forthwith to halt the removal. Counsel immediately drafted the necessary court documents and judicial review proceedings were lodged on 17 April 2009. This step succeeded in persuading the SS to cancel the removal directions and to release the claimant and her daughter on bail.
15. At the same time, counsel advised that an application to appeal out of time and an appeal notice should be immediately lodged with the AIT and drafted the necessary documents. This application was lodged on 15 April 2009 and was dismissed by the AIT on 17 April 2009. Counsel also advised that it was necessary to try and obtain evidence of the errors of the first solicitors, Immigration Advisory Service from that firm and a letter was sent belatedly to Immigration Advisory Service on 16 April 2010 asking for an explanation for the defaults of that firm in failing to appeal in time. No answer was received to this request. The AIT's extension of time dismissal decision is the subject of this judicial review.
16. The claimant's grounds for seeking judicial review were that the SS's decisions of 19 December 2008 and 4 March 2009 dismissing the claimant's application of 19 September 2009 as a fresh claim were Wednesbury unreasonable and that there should be, in the meantime, a stay of the removal directions. Permission to advance those grounds was refused by Cranston J on 5 May 2010 who also ordered that renewal would be no bar to the removal of the claimant to Sri Lanka. On 14 May 2010, the permission application was renewed and the claimant served an additional grounds of challenge document which sought to join the AIT as a second defendant in order to challenge the AIT's decision to refuse to extend time. The claimant also served an application for an injunction to prevent her and her daughter's removal pending the hearing of the renewed application and the challenge to the AIT's decision.
17. At the permission hearing, the claimant's counsel did not pursue the permission application against the SS. The SS's legal representatives at the hearing reached an agreement with counsel acting for the claimant that the claim against the SS would be dismissed and that the renewed permission application would proceed against the AIT as an application to add the AIT as a defendant and an oral application for permission. That hearing took place on 31 July 2010 and Mr Timothy Corner QC granted permission to amend the grounds, to add the AIT as a party and to challenge the AIT's decision and also ordered that the application against the SS should be dismissed.
18. At some date subsequently, MNS Law was replaced as the solicitors acting for the claimant by Ravi Solicitors, a firm based in Harrow, Middlesex. No details of when or why this second change had occurred were provided save that a letter from Ravi to the AIT dated 7 April 2010 about the forthcoming Administrative Court hearing stated that Ravi had "recently inherited this matter from another firm of solicitors, namely NMS Law."

Rule 10 of the AIT (Procedure) Rules and BO (Nigeria)

19. Applications to extend time for lodging an AIT appeal are covered by Rule 10 of the Asylum and Immigration Tribunal (Procedure) Rules 2005. This Rule sets out a detailed procedure for lodging and particularising an application to extend time. The Rule also identifies the ground upon which an application may be granted.
20. Extension of time applications are dealt with by a Duty Judge of the AIT on paper within a very short time after a notice of appeal is lodged. The way that such applications should be made and supported by evidence and the approach that the Duty Judge should take in dealing with them has been the subject of an AIT decision that lays down clear guidelines for AIT Duty Judges to follow. This is the AIT's decision in BO and others (Extension of time for appealing) (Nigeria)^[1], being a decision of a three-judge AIT concerned with five conjoined extension of time applications presided over by the Deputy President, Mr C M G Ockleton. It is worth quoting extensively from that decision since it is authoritative, comprehensive and definitive. The relevant passages are as follows:

"6. The time for giving notice of appeal is set out in Rule 7 and ranges from five to twenty-eight days after the effective notice of decision. (There are special arrangements for "fast-track" cases, which we do not consider further in this determination.) Rule 8 sets out the form and contents of the notice of appeal. Amongst other requirements, the notice must include the grounds of appeal and reasons in support of the grounds, and be signed and dated. Rule 9 provides that if a notice of appeal is given against a decision carrying no right of appeal, the Tribunal "shall not accept the notice of appeal". Rule 10 is headed "Late notice of appeal" and is as follows:

"(1) If a notice of appeal is given outside the applicable time limit, it must include an application for an extension of time for appealing, which must-

(a) include a statement of the reasons for failing to give the notice within that period; and

(b) be accompanied by any written evidence relied upon in support of those reasons.

(2) If a notice of appeal appears to the Tribunal to have been given outside the applicable time limit but does not include an application for an extension of time, unless the Tribunal extends the time for appealing of its own initiative, it must notify the person giving notice of appeal in writing that it proposes to treat the notice of appeal as being out of time.

(3) Where the Tribunal gives notification under paragraph (2), if the person giving notice of appeal contends that-

(a) the notice of appeal was given in time, or

(b) there were special circumstances for failing to give the notice of appeal in time which could not reasonably have been stated in the notice of appeal,

he may file with the Tribunal written evidence in support of that contention.

(4) Written evidence under paragraph (3) must be filed-

(a) if the person giving notice of appeal is in the United Kingdom, not later than 3 days; or

(b) if the person giving notice of appeal is outside the United Kingdom, not later than 10 days,

after notification is given under paragraph (2).

(5) Where the notice of appeal was given out of time, the Tribunal may extend the time for appealing if satisfied that by reason of special circumstances it would be unjust not to do so.

(6) The Tribunal must decide any issue as to whether a notice of appeal was given in time, or whether to extend the time for appealing, as a preliminary decision without a hearing, and in doing so may only take account of-

(a) the matters stated in the notice of appeal;

(b) any evidence filed by the person giving notice of appeal in accordance with paragraph (1) or (3); and

(c) any other relevant matters of fact within the knowledge of the Tribunal.

(7) Subject to paragraphs (8) and (9), the Tribunal must serve written notice of any decision under this rule on the parties.

(8) Where-

(a) a notice of appeal under section 82 of the 2002 Act which relates in whole or in part to an asylum claim was given out of time;

(b) the person giving notice of appeal is in the United Kingdom; and

(c) the Tribunal refuses to extend the time for appealing,

the Tribunal must serve written notice of its decision on the respondent, which must-

(i) serve the notice of decision on the person giving notice of appeal not later than 28 days after receiving it from the Tribunal; and

(ii) as soon as is practicable after serving the notice of decision, notify the Tribunal on what date and by what means it was served.

(9) Where paragraph (8) applies, if the respondent does not give the Tribunal notification under sub-paragraph (ii) within 29 days after the Tribunal serves the notice of decision on it, the Tribunal must serve the notice of decision on the person giving notice of appeal as soon as reasonably practicable thereafter.

…

The explanation for the delay

12. Through the Rules, Parliament has made it clear that the explanation for the lateness of a late notice is of importance. An appellant who knows that his notice will be late is required to give his explanation in the notice itself; if there is no explanation then, by the procedure under Rule 10(2)-(4), the Tribunal is required to take certain steps to ensure that any appropriate explanation is before it. In all cases, the explanation for the lateness of the notice needs to be supported by evidence and is an integral part of an application for time to be extended.

13. It seems to us that the explanation for the lateness of the notice should be the Immigration Judge's starting point. It is sometimes said or implied that the starting point might be the strength of the grounds. Sometimes it is suggested that the strength of the grounds of appeal ought to be sufficient to overcome failure to comply with Rules as to time, and it is sometimes said that the strength of the grounds should always be considered. We do not think that is quite right. No doubt, as we indicate below, the strength of the grounds is a factor to be considered if there is some explanation or excuse for the lateness. But it does not seem to us that strong grounds could, by themselves, be a good reason for extending time. If it were so, a person who had strong grounds would in essence be exempt from the requirements as to time.

14. So the first question is, what is the explanation for the lateness? If there is no explanation at all, or no satisfactory explanation, or an explanation which is not supported by evidence that ought to have been readily available, we regard it as very unlikely indeed that it will be right to say that time should be extended. We do not say "never", because that would be dangerous. But in the absence of an explanation, we think that it could only be where there are obvious and quite exceptional reasons for extending time and where the issue is one of wider public importance or where (despite the lack of information provided by the appellant) it is clear that there has been a serious denial of justice, that time would be extended in circumstances in which no, or no properly supported, explanation for the lateness is given.

15. In deciding whether there has been an explanation for the lateness, the Immigration Judge should ensure that whatever explanation is given covers the whole of the period of delay. A week's sickness, even if properly evidenced, is very unlikely to be an explanation for a month's delay.

16. It is our experience that, in this jurisdiction, delay is very often said to be the fault of the appellant's representatives. Either the representatives themselves acknowledge the delay as their fault, or one firm (or the appellant himself) blames the delay on another firm. The principles that we consider ought to be adopted in evaluating explanations of this sort are the following. First, delay by representatives cannot be an explanation for the appellant's own delay. If, therefore, the case is one in which the appellant might be expected to have himself been prompt in ensuring that a timely notice of appeal was entered on his behalf, or if the representatives' delay occurred only after time had already expired, it is very unlikely that delay by the representatives will be an effective explanation for the lateness of the notice.

17. Secondly, a delay by representatives, acknowledged by those representatives as their own fault, may be a satisfactory explanation: but the Tribunal keeps a record of those who offer such explanations, and a firm that finds itself obliged to acknowledge faults of this sort more than once or twice is likely to be reported to the Office of the Immigration Services Commissioner with a view to investigation either by the Commissioner herself or by the appropriate professional body.

18. There is, thirdly, the question of allegations made against a representative who is not now acting. The Tribunal's usual practice, when an appeal is current, is to require the person making the allegations to substantiate them either with an acknowledgement of fault from the earlier representative, or documentation showing that letters on the subject have been sent and not answered. We do not consider that this procedure is practicable in the case of extending time for appealing. Instead, in this type of case the Tribunal will consider the application for extension of time on its merits, noting the evidence that actually has been produced. If the application lacks even evidence which would have been available to the new representatives, that may be the end of the matter. If, on the other hand, the new representatives appear to have done all that they could do in order to make a proper application without extending the delay any further, the absence of information from the old representatives will not be fatal to the application for extension. The Tribunal is, however, likely to require the new representatives to attempt to obtain an acknowledgement of fault from the old representatives and to show, at the hearing of the appeal, either the result or the record of failure. In all such cases the Tribunal is likely to make a report to the Office of the Immigration Services Commissioner.

19. The requirement for evidence is important. In assessing the explanation for delay, the Immigration Judge will be making findings of fact. If he is not shown evidence that ought readily to have been available, or if (whether or not evidence is produced) he does not believe the explanation given on the appellant's behalf, he is entitled to say so and to decide that there has been no effective explanation for the delay. As we have indicated above, in such a case it is very unlikely indeed that time should then be extended.

20. If, on the other hand, there is an effective explanation, whether it amounts to a good excuse or a bad one is merely one of the matters to be taken into account, with all other factors, in deciding whether "by reason of special circumstances it would be unjust not to" extend time.

Other factors

21. We cannot, of course, provide a comprehensive list of the other factors that might be relevant: every case depends on its own individual facts and merits. We offer the following observations and guidance on a number of factors that, in our experience, frequently arise for consideration.

(i) Strength of the grounds of appeal

As we have said, good grounds of appeal cannot be a substitute for timeliness. If there is an explanation for the delay, however, the strength of the grounds of appeal may help to compensate for a bad excuse. The strength of the grounds should therefore always be taken into account in deciding whether to grant an application for the extension of time that is properly supported by an explanation and evidence. The stronger the grounds are, the more likely it is that justice will demand that they be heard.

What then of weak grounds? If the grounds are non-existent or simply hopeless, it may be that no useful purpose would be served by extending time and so allowing an appeal to proceed. But the Duty Judge considering whether to extend time should remember that he is not deciding the appeal. If grounds are viable, their weakness should not of itself be a reason for refusing to extend time.

(ii) The consequences of the decision

Particularly because the refusal to extend time for appealing is for all practical purposes a final decision, the Duty Judge should take into account what the consequences of that decision will be. In the case of an out-of-country decision, the applicant will nearly always have an opportunity to make a new application, receive a new decision and, if necessary, appeal against it in a timely manner. (The only obvious exception is where the appellant has reached the age of eighteen since his original application and so cannot any longer have the benefits of being treated as a minor under the Immigration Rules.)

In many decisions relating to those who are within the United Kingdom, however, the consequence of the decision may be that the person no longer has the possibility of an in-country right of appeal: having failed successfully to appeal against the decision he may be subject to removal and, if removed, will for the future be able to maintain his rights only from abroad in response to some future immigration decision. There is thus no doubt that the consequences of refusal to extend time are likely to be more severe when the decision against which the appeal is to be brought is one which carries a threat of removal. We have no doubt that the Duty Judge should take that into account.

Having said that, it may well be that the express or implicit threat of removal in the case of an in-country claimant is something which ought to stir him into action: if that is right, it would follow that in such circumstances a long delay would be more difficult to condone.

(iii) Length of delay

That brings us to general issues relating to the length of the delay. As we have indicated, there must be an explanation or series of explanations that properly cover the whole of the delay. That said, however, it appears to us that if such explanations are put forward, there is no difference in principle between a long delay and a short delay. In particular, firstly, we would not say that there is any length of delay beyond which applications for extension could not normally succeed. Clearly, the length of the delay is a factor to be taken into account with all the other circumstances of the case, but an explanation that is adequate cannot be rendered less so by the length of the delay.

At the other end of the scale, we are unable to assent to the proposition that a short delay should always or regularly be condoned. That is equivalent to saying that appellants do not need to meet the requirements of the Rules. We see no such suggestion in the Rules themselves, nor does any principle of justice require it. In in-country appeals, a day's delay is equivalent to an addition of twenty percent or ten percent to the time allowed for appealing: it can hardly be regarded as de minimis. And the fact that only a day has passed since the end of the time limited for appealing cannot conceivably be regarded as a "special circumstance". A person who is a day late needs to explain his lateness in the same way as a person who is a week or a month late. A routine extension, without an explanation or excuse for the delay, is not permitted by the Rules. But, again, the fact that the delay was only a short one is a factor to be taken into account in appropriate cases.

(iv) Prejudice to the Respondent

It is frequently asserted that a court should be more willing to extend time if to do so would cause no prejudice to the other party. We readily accept that this is a factor to be taken into account in matters relating, for example, to failure to comply with directions during pending litigation. The position in the cases which we are considering, however, is quite different. The prejudice to the Respondent is identical in every case. If there is an appeal, he will no doubt want to defend it. If there is not, he will be saved the trouble and expense of doing so. The passage of time makes no difference to those considerations; and we have not heard that, immediately time for appealing runs out in any case, the Respondent diverts to other projects the money that he would have used to defend an appeal if it had been brought. No doubt it could be said that the Respondent is entitled to know the extent to which he is at risk of having to defend an appeal. In practical terms, however, bearing in mind the numbers involved, the impact on the Respondent is minimal.

For these reasons, it appears to us that no argument based on lack of prejudice to the Respondent can have any force at all in individual applications for the extension of time.

(v) Mistakes, delays and breaches of Rules by the Respondent

No doubt it is a consequence of the enormous numbers to which we have just made reference that it occasionally happens that applications are lost or unaccountably delayed; sometimes mistakes are made in dealing with them, sometimes amounting to a breach of the Rules. We would not accept that all errors and mistakes by the Respondent entitle an appellant to an extension of time; but there are two areas in particular where the Respondent's conduct may be of relevance. First, it may be that an error by the Respondent has caused or contributed to the appellant's delay. For example, the Respondent might have made a mistake as to the address for the service of the notice of decision, or he might have miscalculated the date for the service of the notice of appeal and so misled the appellant into thinking that he had longer to appeal than he did have. It is very unlikely that an Immigration Judge would want to take such a factor into account without the clearest of evidence supporting a claimant's allegation: but if there was such evidence, it is very likely that the interests of justice would require the Respondent's mistake not to be held against the appellant.

Further, where there is a breach of the Rules or a mistake or very extensive delay in the Respondent dealing with the appellant, it might in some circumstances be regarded as disproportionate to refuse to extend the appellant's time for appealing. Clearly, any such case would depend on the individual facts.

22. We must again emphasise that the foregoing is not intended to be a complete list. What is important is that the Duty Judge takes into account all the material that is before him and balances all the factors, including the adequacy of the explanation, against one another in order to decide whether the case is one in which there are special circumstances demanding that time be extended in the interests of justice."

Extension of Time Applications

21. General. The AIT has to deal with a large number of extension of time applications given its huge workload arising from appeals in immigration decisions. Self-evidently, these applications cover a wide spectrum in terms of the period of delay that has occurred, the nature and degree of the culpability of those involved, the factual background to the application and the nature and extent of the potential injustice that the extension of time application is intended to allay. Furthermore, everyone involved in an extension of time application is working under very considerable pressure in terms of the time available to that individual to undertake his or her part in the application, the Duty Judges and the representatives of appellants have to work under acute financial pressures and targets and the balancing exercise that is often involved in an extension of time application and decision is often difficult to undertake.
22. Thus, the rules and practice applicable to such applications must be easy to understand, transparent, flexible and practical in application. The decision-making process should be structured and the reasons, particular if explaining a refusal to extend time, must be clear. These general principles are particularly important given that the test that the Duty Judge must apply in deciding whether to extend time is a very open textured one: namely whether he or she is satisfied that by reason of special circumstances it would be unjust not to extend time. This gives the Duty Judge a very wide ambit of discretion. Moreover, the decision is final save in the most exceptional circumstances in a judicial review since, although a preliminary decision, it is not susceptible to internal review or to the reconsideration procedure available to substantive AIT decisions.
23. These considerations underlie the importance of the decision in BO (Nigeria) given the authoritative guidance as to the meaning and workings of Rule 10. The AIT should apply that guidance in every extension of time application. The BO (Nigeria) decision is one that the Administrative Court will endorse when called upon to determine whether an extension of time decision is Wednesbury unreasonable. Thus, any judicial review challenge to a Duty Judge's extension of time decision must take as its starting point the question of whether the BO (Nigeria) guidelines were followed.
24. Practitioners. It is essential that practitioners are aware of, and closely follow, the BO (Nigeria) guidelines when preparing an extension of time application. It is important to stress that since, in this case, two separate firms of solicitors, but not the firm currently acting for the claimant, were obviously in complete ignorance of these guidelines. The guidelines emphasise that any failure or shortcoming of a legal practitioner that has contributed to delay in appealing must be considered. Thus, any practitioner involved in an extension of time application has a duty of candour to the AIT in providing a full explanation and disclosure of any shortcoming that that practitioner is aware of, including his or her own shortcomings. All practitioners have a similar duty of candour to the AIT in relation to claimants. They must therefore ensure that their client provides a full and honest explanation of any of his or her shortcomings that have contributed to the delay. Thus, any error, shortcoming or frailty of human nature that has caused or contributed to the failure to lodge a notice of appeal in time must be explained in the evidence that is lodged with the application. These requirements, given the constraints under which a practitioner is working, are onerous but they are in conformity with the guidelines set out in BO (Nigeria).
25. Good practice therefore requires, in most extension applications, that the explanation of all aspects of the delay in question should be set out in a witness statement from either the claimant or the practitioner, or if necessary from both. That explanation should address all aspects of the delay since any lack of candour will be inimical to the claimant's interests in attempting to obtain an extension. These duties do not override a claimant's legal privilege of confidentiality in relation to communications with his or her lawyer. However, they do require a client's legal adviser to advise a claimant on the desirability, in that claimant's interest, to waive privilege in so far as that would be helpful to support an extension of time application. This duty extends to providing the client with a full and candid explanation of any error, shortcoming or failure by the legal adviser or legal representative that has caused or contributed to the situation in which the notice of appeal has not been lodged in time and of the need for any shortcoming of the claimant or the representative to be fully disclosed to the AIT as part of the evidence supporting the extension of time application.
26. The Duty Judge. Extension of time applications are dealt with by one of the Duty Judges sitting in the AIT Registry in Loughborough. The Duty Judge is an Immigration Judge nominated to sit as a Duty Judge in rotation. Although I was not provided with statistics showing the number of extension of time applications that are dealt with in any particular period of time or the resources available to deal with them, I can take judicial notice of the fact that there are a limited number of Duty Judges available on each working day to deal with a large number of such applications. There is, therefore, considerable pressure on the Duty Judge when dealing with any application. These are dealt with on paper since an oral hearing is not permitted and the turn-around time is very short. Rule 10(6) provides that the Duty Judge may only consider the papers that are lodged, which are to be a statement of the reasons for failing to give the notice in time accompanied by any written evidence relied upon in support of those reasons and "any other relevant matters of fact within the knowledge of the Tribunal".
27. It is therefore essential that the Duty Judge is provided with all relevant evidence in a readily intelligible form and that he or she then follows an appropriate check list in deciding each application whilst reaching a structured decision. In practice, Duty Judges have considerable experience in following a check list and in reaching a structured decision and it is also obvious that the check list that they use closely follows or is derived from the guidelines set out in BO (Nigeria).
28. The Duty Judge may, but only in an exceptional and obvious case, allow an application with only the most limited amount of evidence or, if he or she spots that an extension is required that has not been applied for, with no evidence at all. In all cases where an extension of time is granted, the Duty Judge need only give the briefest of reasons why that decision was taken. If the decision is to refuse to extend time, the reasons need not be lengthy but they should be sufficient to show that the decision has been arrived at in a structured manner, has taken account of all relevant factors, has not taken into account any irrelevant factors, is in accordance with the law and, overall, allows the claimant to know why his or her application to extend time has failed.

Application and decision

29. The application. The application to extend time in this case was prepared in a great hurry, given the delay that had already occurred and the imminent removal of the claimant and her daughter. As a result, the application was set out in a relatively brief notice of appeal in this way:

"2 This appeal is being lodged well out the specified time period for the following reasons:

i. The [claimant's] previous representatives had failed to appeal against the [SS's] refusal letter dated 18 July 2008, and had failed in their duty of care to represent the [claimant's] best interests.

ii. The [claimant's] previous representatives ceased acting for the [claimant], without due notice to the [claimant] and failed to advise her to appeal within the prescribed time period and further did not advise her to seek alternative representation.

iii. The [claimant] submits that her asylum claim has merit and she must not be deprived of giving oral evidence before an Immigration Judge and must not be deprived of discharging the burden of proof in relation to those matters raised by the [SS] in her refusal letter.

iv. The [claimant] respectfully reminds the Court as to the abject deterioration in the Country situation in Sri Lanka and submits that there will be a serious breach of the Refugee Convention if she is removed to Sri Lanka.

v. The [claimant] is a single mother with a very young child and her appeal and application for protection must be considered by an independent Immigration Judge prior to any removal.

vi. The [SS] has set removal for 18 April 2009 on the premise that the [claimant] decided not to exercise her appeal right, which is incurred.

3. The [claimant] submits that the time period for filing this appeal should be extended due to the aforementioned special circumstances, which have occurred as a result of the failure of the [claimant's] previous representatives."

The grounds then provided a brief summary of the grounds of appeal that the claimant wishes to advance before the AIT at a substantive hearing of her appeal.

30. No other documents were lodged with this notice of appeal. Since Rule 10 provides that the reasons should be accompanied by any written evidence relied upon in support of those reasons, a detailed witness statement and copies of relevant documents including the decision of the SS under appeal should have been lodged with this notice of appeal.
31. The decision. The decision runs to nine numbered paragraphs. It identifies the issue to be determined and the applicable law to be followed and expressly refers to the guidance in BO (Nigeria). The decision then states that^[2]:

A "The Relevant Law

2.3 BO provides that the starting point must be the explanation for the appeal being out of time. If there is no explanation at all, or no satisfactory explanation which is not supported by the evidence that ought to have been readily available, it is very unlikely that time should be extended. In the absence of an explanation time could only be extended where there are obvious and quite exceptional reasons for doing so and where the issue is one of wider public importance or where (despite the lack of information provided by the [claimant]) it is clear that there has been a serious denial of justice."

B "The Explanation for the Delay

3.1 The Notice of Appeal incorporated an application for an extension of time for the lodging of the appeal. The application asserts a failure by the [claimant]'s previous representatives to lodge an appeal. Reference is made to the representatives ceasing to act "without due notice to the [claimant]". It is unclear what is meant by "due notice". It is asserted that the Representatives failed to advise the [claimant] to appeal within the prescribed time limit. However, the time limit is clearly set out in the body of the notice and in the margin of the appeal form and therefore should have been known to the [claimant].

C "3.2 It is further argued that the [claimant] should have been advised to seek alternative representation. However, the application does not explain why the [claimant] was unable to complete and submit the appeal form herself. It is not a prerequisite to an appeal that a [claimant] being represented (sic)."

D. "3.3 I have no information as to when the previous representatives ceased to act. In any event it was incumbent upon the [claimant] to show an explanation for the entire period of delay. It would seem that at some point the [claimant] found new representatives. This is evidenced by the fact that those new representatives then entered into correspondence with the Home Office to make representations for the decision to be reviewed based upon new facts. The letter in response from the Home Office refers to a letter from the representatives dated 30 December 2008. There is no explanation as to why the new representatives did not immediately lodge an appeal after they where instructed. Also the letter in response from the Home Office is dated 4 March 2009 and there is no explanation as to why there was a continuing delay before the appeal was eventually lodged on 16 April 2009. It follows that even if I were to accept that there had been failings by the previous representatives an explanation for the entire period of delay has not been established."

E. "3.4 The decision in BO refers to the allegations being made as to the failings of previous representatives. No evidence has been produced of any attempt to put the alleged failing to the representatives. There has been ample time to do so. I am not told whether the new representatives have obtained the file of their predecessors. No evidence has been produced from that file to substantiate the allegations in any event."

F. "3.5 Having regard to the above, I must conclude that the application for an extension is inadequate and the [claimant] has failed to establish to the standard of proof an acceptable explanation for the entire period of delay."

G. "The Determination

4.1 Having considered all the papers, I am satisfied that this appeal does not fall within the category as outlined in paragraph 2.3 above. The [SS] gave detailed reasons for refusing the [claimant's] application for asylum in the refusal letter dated 18 July 2008. This included detailed consideration of the [claimant's] human rights claims. Equally, the [SS] has apparently considered the "new facts" that were put forward by the new representatives and concluded that it did not amount to a fresh claim. If the [claimant] considers that the decision to be incorrect, she has her remedy elsewhere but it does not in my judgment provide a basis to extend time for appeal against the decision made in 2008."

H "I am unable to identify any special circumstances relating to this appeal which would render it unjust not to exercise my discretion under Rule 10(5) by enlarging time."

32. The Grounds of challenge. On behalf of the claimant, the following grounds of challenge are made:

(1) The decision does not fully take account of the failure of IAS to give a notice of appeal in time.

(2) The decision wrongly suggests that the claimant was at fault in not herself giving a timeous notice or one with a significantly reduced period of delay.

(3) The present representatives did write to the previous representatives seeking an explanation for the failure to give a timeous notice.

(4) As to the delay of the current representatives, the grounds state:

"… it is understood that they wrongly believed that the correct approach was to correspond with the defendant to obtain a further right of appeal and not with the AIT. It was not until they sought advice from counsel that the error was brought to their attention."

(5) The AIT did not go onto consider the merits of the asylum claim.

(6) The AIT did not consider the overall impact on the claimant of not extending time to appeal. The reality is that there is potentially considerable adverse impact on the claimant given that the claimant is at risk of persecution if she and her daughter are returned to Sri Lanka without there being an opportunity for the claimant to make her case at the hearing of an appeal.

(7) Overall, there are significant public interest reasons for allowing the claimant a right of appeal.

33. Reason for granting permission. The judge granted permission because:

"In this case, it would appear that whether or not it has been acknowledged [that the delay was caused by the claimant's representatives], the delay was the fault of the representatives. I am, of course, aware that the immigration judge points out that the representatives having delayed, it would have been possible for the claimant to put in an appeal in herself. Nevertheless, she did have representatives and it appears that at least arguable that the approach of the immigration judge was to say, in effect: your representatives have delayed in making this appeal in time and given that you yourself could have and did not put in a notice of appeal, time will not be extended because there has been no satisfactory explanation. I think it is arguable that that approach does not comply with the case law to which I have referred."

Discussion

34. The starting point in this judicial review is the sparse grounds of appeal submitted on behalf of the claimant in relation to the explanation as to why the claimant was seeking an extension of time of thirty six weeks and one day from 1 August 2008 until 16 April 2009. The only explanation offered was that the claimant's previous representatives failed to appeal and failed to advise the claimant to appeal. That explanation is acceptable in principle, albeit that significant further detail is called for, but it can only explain a delay of about four weeks and three days from 1 August 2008 until about 1 September 2008. No explanation was given for these many failings of MNS Law. That firm:

(1) Did not instruct counsel that the claimant spoke no English nor that she was claiming that she had never received a copy of the SS's decision dated 18 July 2008 at her sister's house where she was staying;

(2) Did not obtain Immigration Advisory Service's file when they were first instructed;

(3) Did not understand the difference between an appeal from the SS's original decision and a fresh claim made under paragraph 353 of the Immigration Rules;

(4) Thought that the SS, and in particular the original decision-maker, had the power to grant the claimant a fresh appeal by way of a review of the original decision;

(5) Did not visit or communicate with the claimant whilst she was in prison between 28 October 2008 and 8 March 2009 and did not bring the fact that she had been in prison to the attention of counsel when he was drafting the requisite documentation for lodging her application to extend time.

(6) Did not submit an extension of time application soon after the SS refused the claimant's fresh claim on 19 December 2008 or her second fresh claim on 4 March 2009.

(7) Was totally oblivious of the factors that had to be identified in connection with an extension of time application and was unaware of and failed to follow the BO (Nigeria) guidelines.

(8) Failed to draw to the attention of the AIT that the first time that they had attempted to contact Immigration Advisory Service was on 16 April 2009 after their extension application had been sent off to the AIT on 15 April 2009 and failed to explain why they had never attempted to contact the legal representatives by telephone and letter at any stage prior to 16 April 2009.

(9) Failed to indicate what advice they had given the claimant about their own conduct in relation to her extension of time application or whether they had sought the claimant's permission to waive legal professional privilege in relation to any communications between them and her.

(10) Failed to provide a full set of correspondence between them and the SS or any explanation for the unusual applications that the correspondence shows that they were making to the SS.

35. Counsel had no more than a few hours to settle the application once he was first instructed since the claimant was facing removal to Sri Lanka in less than twenty four hours after he was instructed pursuant to removal directions that had already been issued. It is not surprising, therefore that he was unable to refer to any of these shortcomings in the application, particularly since none of them appear to have been brought to his attention by MNS.
36. Turning to the Immigration Judge's decision, I make the following findings:

(1) Passage A: The decision in this passage fairly summarised paragraph 16 of the BO (Nigeria) decision and concluded that that paragraph was applicable because the explanation for the delay provided in the notice of appeal only dealt with four of the thirty six weeks of delay that had occurred. The decision correctly considered that the application provided:

"no satisfactory explanation or an explanation not supported by evidence that ought to have been readily available" (paragraph 16).

The application could, therefore, fairly be said to be one where permission would only be granted where there were exceptional reasons for doing so, where the issue was one of wider public importance or where there had been a serious denial of justice.

(2) Passage B: The decision suggested that the claimant should have been aware of when the notice of appeal had to be lodged and should herself have lodged it timeously. Thus, the claimant could not rely in her favour on the failure by her then representatives to inform her that the notice of appeal had not been lodged. However, the decision did not consider whether the claimant was able to speak English and it assumed that she had received a copy of the decision whereas it was at least possible that she had not received one.

(3) Passage C: The decision suggested, correctly, that the application did not explain why the claimant was unable to submit the appeal form herself. However, it was unreasonable to assume from the absence of that explanation that the claimant could and should have submitted her own notice of appeal.

(4) Passage D: The decision drew attention to the absence in the application of any explanation of the obvious shortcomings of either of the claimant's representatives when acting for the claimant in connection with her appeal and of their failure to provide any explanation for those shortcomings. The Immigration Judge was entitled to conclude that there was no explanation for the greater part of the period of delay.

(5) Passage E: This passage contained an unexceptional finding that no explanation had been provided from either of the representatives, namely Immigration Advisory Service or MNS Law, of their failings and that neither had supplied the AIT with the relevant contents of their files.

(6) Passage F: It is not possible to challenge the conclusion that there had been no adequate explanation for the entire period of delay given that only four of the thirty six weeks of delay were dealt with, and those wholly inadequately.

(7) Passage G: This passage speculated as to the strength of the claimant's case although the Immigration Judge had not been provided with any details of the SS's decision to reject it save for a reference to the fact that her asylum claim and her two fresh asylum claim applications had been dismissed. The passage does not consider the brief summary of the claimant's case set out in the notice of appeal which suggests that the Immigration Judge did not consider it at all.

(8) Passage H: This passage did not consider the consequences of the decision to refuse to extend time on the claimant and her child and did not address the issue as to whether this case is an exceptional one or is one of wider public importance or is one where there might be a serious denial of justice if the claimant was unable to appeal.

37. Thus, parts of the decision are incapable of being challenged. However, the decision contains four serious errors:

(1) The decision concluded that the claimant could have served her notice of appeal herself. Although the notice of appeal is brief, its contents do not reasonably lead to this conclusion. Indeed, the contrary is the case given that the claimant was stated to be a twenty-one year old Sri Lankan female with a young child and with no obvious ability to undertake that difficult exercise.

(2) The decision did not consider the strength of the claimant's asylum claim. This claim, as put forward by her, was neither non-existent nor hopeless to use the BO (Nigeria) guidelines terminology. Moreover, the claimant is an asylum-seeker from Sri Lanka which is a country from where many asylum-seekers with well-founded fears of persecution are still be granted asylum in the United Kingdom. Finally, her claim is clearly heavily dependent on issues of credibility and on a consideration of the complex risk factors that have to be applied to any decision involving an asylum claim from Sri Lanka. Both issues are ones which frequently require an oral hearing if they are to be fairly determined. The case therefore fell within the category of cases referred to in the BO (Nigeria) guidelines as being viable and was one which it was appropriate for the Duty Judge to "remember that he is not deciding the appeal"^[3].

(3) The decision did not consider what the consequences of a refusal decision would be for the claimant. This is one of the crucial factors that the BO (Nigeria) guidelines suggest a Duty Judge should take account of when considering an extension of time application. In particular, the Immigration Judge should have taken into account the fact that, if the decision was to be a refusal, the claimant would immediately be returned to Sri Lanka where, on her case, she and her daughter would face persecution, ill-treatment and refugee camp detention because of her association, or perceived association, with the LTTE.

(4) The decision did not give any consideration as to whether there had been, or might have been, a denial of justice in this case nor whether the interests of justice should permit the claimant an oral hearing at an AIT appeal. Given her circumstances and the way that her asylum applications had been dealt with by her legal representatives, both of these considerations were applicable to the claimant's application.

38. In the light of these four errors, the decision is Wednesbury unreasonable. It has failed to take account of the consequences to the claimant and her daughter of being returned to Sri Lanka and of the possible denial of justice if she is not allowed to appeal and it wrongly considered that the claimant could have timeously lodged her own appeal and that her appeal was hopeless. These failings occurred because the Immigration Judge did not undertake a structured decision-making process and did not faithfully follow the BO (Nigeria) guidelines.
39. The decision must therefore be set aside. Since it is clear that a reconsideration of the application, based on the much fuller knowledge that is now available about the claimant's representatives' shortcomings would inevitably lead to the claimant being granted an extension of time, I direct that the claimant's time for giving notice of appeal to the defendant is extended until 17 April 2009. Since the defendant, a tribunal, did not appear and was not represented, there will be no order for costs save for a Community Legal Services assessment of the claimant's costs.
40. The order will be as follows:

(1) The decision of the AIT dated 17 April 2009 in appeal number AA/03071/2009 is discharged.

(2) The time for the claimant to give a notice of appeal to the defendant against the decision of the Secretary of State for the Home Department dated 18 July 2008 is extended until 17 April 2009.

(3) There be no order for costs save that there is to be a Community Legal Services assessment of the claimant's costs in CO/6357/2009.

HH Judge Anthony Thornton QC

Note 1    [2006] UKAIT 00035.    [Back]

Note 2    Each passage is identified with a capital letter. That has been inserted by me and each separate passage is discussed separately below by reference to its capital letter marking.    [Back]

Note 3    Ibid., paragraph 21(i).    [Back]