England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		17 February 2012

1. THE DEPUTY JUDGE: This claimant was born on 15 October 1952, so now aged 59. He arrived in the UK as a visitor in November 2004 it appears.
2. On 25 January 2010 he was convicted of possession of false identity documents at Snaresbrook Crown Court. He was sentenced to 6-months' imprisonment and was recommended for deportation.
3. On 15 February 2010 he was served with a letter indicating his liability to deportation and the following day was placed in immigration detention to await a decision. That decision came on 23 November 2010 and was given to the claimant in writing with reasons, that a deportation order would be made and making it clear that he had the right to appeal. A notice of appeal form was enclosed with the decision. The effective date was indicated and it was clear that he had five working days only to serve that notice of appeal. The deadline therefore was 30 November 2010, allowing for the additional two weekend days. That follows from the Asylum an Immigration Tribunal Procedure Rules 2005, rule 7.
4. The appeal was filed through solicitors on 1 December 2010, one day out of time. The issue in this application is whether the first tribunal judge, who refused an extension of time to appeal, correctly applied the guidance that was given in the case of BO (extension of time for appealing) Nigeria [2006] UK AIT 00035.
5. Rule 10 of the 2005 rules contains the following relevant powers:
6. Paragraph 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."

7. Paragraph 6 of rule 10 says:

"The tribunal must decide any issue as to ... whether to extend 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 paragraphs 1 or 3; and (c) any other relevant matters of fact within the knowledge of the tribunal."

8. The judgment in BO makes it clear, in details from paragraph 12 onwards which I will not set out extensively, the following propositions. Firstly, the explanation for lateness is important. Secondly, that explanation needs to be supported by evidence in all cases. Thirdly, that explanation should be the starting point for considering extensions of time. Fourthly, the strength of the grounds is a factor but cannot by itself be a good reason for extending time. Fifthly, if there is no explanation or no satisfactory explanation, or an explanation not supported by evidence readily available, it is very unlikely indeed that it will be right to extend time. Sixthly, other factors which may be relevant are (a) the strength of the grounds of appeal; (b) the consequences of the decision -- it is likely to be more severe where a decision appealed carries a threat of removal; (c) the length of the delay, bearing in mind that a short delay should not always or regularly be condoned, it may, as in this case, be 20 per cent of the time allowed for appealing but shortness of the delay is a factor; and (d) prejudice to the respondent never has any force in these cases. And seventhly, reasons are necessary; if an extension is refused because no effective reason for the delay has been given it will in almost all circumstances be enough simply to say so.
9. That is my short distillation of what I have read in detail and absorbed from the case of BO.
10. In the present application no reason was given in the notice of appeal for the lateness of the appeal, save for the following:

"The appellant is in detention, it is in the interests of justice that the appeal be allowed out of time."

11. That is, in my judgment, not an explanation. It is an argument but the only fact that is set out is that the appellant is in detention. It cannot possibly be suggested that every appellant in detention should, by reason of that evidential fact, be entitled to an extension of a deliberately short period of time for appealing. No further evidence was provided to the first tier tribunal judge.
12. The decision in writing of 2 December 2010 starts by setting out the relevant law. It sets out the test in rule 10, paragraph 5 that:

"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."

13. The decision goes on to set out the principles from BO, giving the full reference, and I have no doubt that the immigration judge would have read and had those in mind, and correctly sets out the factors to be taken into account as the explanation for the delay, the strengths of the grounds of appeal, the consequences of the decision and the length of delay. He correctly goes on in 2.3 to note that BO provides that the starting point must be the explanation for the appeal being out of time and, if there is no explanation or no satisfactory explanation, or an explanation which is not supported by evidence that ought to have been readily available, it is very unlikely that time should be extended. It goes on beyond that in terms that I need not set out.
14. The decision then looks at the explanation for the delay and notes the only reason given is the quotation that I have already read out. It goes on then to the determination in three sub paragraphs, 4.1:

"The notice of appeal can be completed without legal help and it is made plain in the document what are the appeal deadlines. It is also stated that an explanation for an appeal being lodged late should be made. There are boxes in which the appellant may indicate what documents he has or wishes to send. The appellant has completed neither and his grounds of appeal are in general terms only."

15. 4.2:

"I find that the appellant has not given satisfactory reasons for the whole of the delay in lodging the appeal."

16. 4.3:

"Taking all the relevant factors into account I am unable to find that there are special circumstances which would make it unjust to refuse the extension of time sought."

17. I have been referred to the case of TR v the Asylum and Immigration Tribunal, an Administrative Court decision reported at [2010] EWHC 2005 (Admin). That concerned a Tamil who spoke no English and who arrived in England with a young child on 30 May 2008. Her asylum claim was rejected by letter dated 18 July 2008, and the time for her to lodge her notice of appeal expired on 1 August 2008, which of course was only two months after her first setting foot in England as a totally strange country. She had been very badly served by her solicitors, to whom she left the responsibility, understandably, of dealing with everything. That, on its facts, is a very different case from this one, where this claimant had been in the UK for six years by December 2010, was a man in his late 50s and had been represented by solicitors since February 2010 in relation to potential deportation. He now says that he decided to change his solicitors at the time of the decision to deport him but no evidence was either before the tribunal judge or indeed before me that he ever took any steps about that, either by communicating with them or attempting to communicate with any other solicitors. Once the five days had expired he contacted his former, and now current, solicitors again and they completed the form. Even now there is no proper explanation for the delay supported by evidence. There is a statement from the claimant which is undated, which gives no details about what he did in the five days after receiving the decision letter, simply says:

"My previous solicitors has [sic] declined to act for me."

18. It provides no evidence that it was their decision rather than his that they should cease to act, or that they ever did so.
19. It is said that he was unable to make and receive external communications from within the detention centre. That is challenged by the defendant here, which has produced evidence -- though after this judicial review application and not before the first tier tribunal judge -- of unrestricted access to post, fax and telephones, and the permission to a detainee to have a mobile phone. None of that evidence was before the first tribunal judge but he was entitled, under rule 10.6(c), to take into account any other relevant matters of fact within his knowledge and I can assume, though it is not set out in his decision, that the experience of an immigration judge would have been that those in detention do have access to legal advice and are able to obtain it, in many cases very quickly indeed.
20. The grounds say that the claimant faxed the deportation decision to solicitors, though their identity is not given. There is no evidence of that fax, or when it was sent. It says that the solicitors were not able to see him and take full instructions but there is no evidence of why not or what that really means.
21. It seems to me that the first tribunal judge was quite entitled to conclude, as he did, that no explanation, or at least no satisfactory explanation, had been given for the delay supported by evidence, and thus no extension should be granted, and that this was a case which falls within what is said in paragraph 23 of BO:

"If the extension has been refused because no effective reason for the delay has been given, it will in almost all circumstances simply be enough to say so."

22. I take the view that there was no need for the immigration judge laboriously to go through the other factors which might have an effect if some explanation had been offered, but if he had done so I cannot see that it would have made any difference to his conclusion. This was not a strong case. I have already said a little about the claimant. He had been convicted of an offence, and had been recommended by the judge who heard the details of that offence for deportation. Subsequently he claimed to have lost his passport. He had no immediate family in this country; he says that he had two siblings, a brother and sister, each living in separate family units in very different parts of the country; one in Rotherham and the other in Stratford. Neither of those, on the information available in the deportation decision letter, had visited him in detention, but he did have an adult son and two adult daughters who lived in Nigeria. So, although, of course, he would have developed some degree of private life during six years in England, it was not a case which, on the face of it, was likely to give rise to an Article 8 claim sufficient to outweigh, in terms of proportionality, the desirability of deporting someone who had been convicted of an offence and recommended for deportation.
23. As to the consequences, it would have been readily apparent to any immigration judge, without referring to it expressly, that this was a case falling within what is set out in paragraph 21.2 of BO, that the consequences of refusal to extend time were likely to be more severe when the decision against which the appeal was to be brought is one which carries a threat of removal.
24. Equally, the length of delay, which is not set out in terms, is one where the claimant was only a day late, but it was one day when set against a time limit of five days. Therefore it was an addition of 20 per cent of the time allowed for appealing, in respect of which BO, in paragraph 21.3, says:

"It can hardly be regarded as de minimis and the fact that only a day has passed since the end of the time limit 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 the person who is a week or a month late."

25. It doesn't seem to me that it was necessary for the immigration judge to deal expressly, in what was a short and urgent application, with all those factors which would have been readily in his mind, as he makes clear in setting out the relevant law.
26. In the skeleton argument for the claimant reference was made to prejudice to the respondent. It was accepted before me that the observations in BO paragraph 21.4 applied, and therefore lack of prejudice to the respondent can have no force at all in this application.
27. For all those reasons, it seems to me that the decision was one which was well within the competence of the first tier tribunal immigration judge. It was in accordance with the clear guidance given by BO and, if it needs to be done, underlines the message that needs to go to all those in the immigration process, whether lawyers or otherwise, that the time limits are there to be complied with. Of course, the result for the claimant is serious and that is something which both the first tier tribunal judge took into account and I have borne in mind, but I cannot for the moment see that it is a reason for overturning the decision that was made.
28. Therefore, this judicial review fails.
29. MISS STOUT: My Lord, thank you. I have an application for costs, although I learned this morning that in fact the claimant is publicly funded. There is a schedule of costs here. At this stage I usually suggest that one looks at the specimen order for costs in the White Book at paragraph 48.14.19, and equally, usually the judge normally says can we not just simply say that the order should not be enforced without leave of the court. I am in your hands as to which of those options you want to take.
30. In any event, I say there should be an order for costs in principle, and of course there needs to --
31. THE DEPUTY JUDGE: In principle, clearly, there should be. But if this is somebody who is legally aided and about to be deported it becomes rather an academic point.
32. MISS STOUT: Indeed, my Lord. I would nevertheless ask that the order be made. What happens thereafter is a matter for the Secretary of State, in my submission.
33. THE DEPUTY JUDGE: Do you have any comments on the figures or the principle? I can make it saying not to be enforced in the usual way.
34. MS ANATO-DUMELO: No necessary comments on the figures per se but he is legally aided and, if this is the case, he is likely to be deported very soon. Any application to try and get legal aid by his solicitors to be able to pay for this costs, probably would not succeed in any event.
35. THE DEPUTY JUDGE: If I say that I will allow those costs as claimed, at £8,154.80, not to be enforced without leave of the court.
36. MS ANATO-DUMELO: Thank you, my Lord.
37. THE DEPUTY JUDGE: And you will want the usual order for assessment of your Legal Service Commission costs?
38. MS ANATO-DUMELO: Yes, my Lord.
39. THE DEPUTY JUDGE: So does that cover the matter?
40. MISS STOUT: It does. Thank you, my Lord.
41. THE DEPUTY JUDGE: Thank you very much.