Scottish Court of Session Decisions

[1] The appellant Sadi Hakim sought leave of the court to lodge an application for leave to appeal against a determination of the Immigration Appeal Tribunal. The motion to allow the application to be received was opposed by counsel on behalf of the Secretary of State on the ground that the application was out of time. The motion was heard in the single bills on 12 March 2001 and was granted.

[2] The appellant is a citizen of Algeria who has applied for political asylum in the United Kingdom. His application was heard by a Special Adjudicator who, by a determination dated 18 September 2000, refused it. The appellant appealed, with leave, to the Immigration Appeal Tribunal which, by a determination dated 6 December 2000, refused his appeal. The appellant then applied to the Immigration Appeal Tribunal for leave to appeal to the Court of Session. The Tribunal refused leave to appeal by a determination, which was dated 27 December 2000 but not notified to the appellant until 9 January 2001. The application to the court for leave to appeal was not lodged until 5 February 2001. On behalf of the Secretary of State it was maintained that the application should have been lodged within 42 days after the determination of the Immigration Appeal Tribunal, dated 6 December 2000, which refused the appellant's appeal from the Special Adjudicator. For the appellant it was submitted that the application was in time if it was lodged within 42 days after the date of intimation of the refusal of leave to appeal, that is 9 January 2001. The issue between the parties is entirely one of construction of the provisions of the Asylum and Immigration Appeal Act 1993 in regard to appeals and of the relevant Rules of Court.

Section 9 of the 1993 Act provides:

[3] Appeals from the Immigration Appeal Tribunal fall under chapter 41 of the Rules of Court. Rule 41.1 provides, inter alia, as follows:

[4] Rule 41.2 provides

[5] Rule 41.2(5) requires, inter alia, that, where applicable, evidence that leave to appeal has been refused by the Tribunal should be submitted along with an application for leave to appeal. Rule 41.20 provides:

[6] There follows reference to a number of enactments, including section 9 of the 1993 Act. Rule 41.20 continues:

[7] The competing submissions can be summarised quite briefly. For the appellant, it was submitted that the decision of the Immigration Appeal Tribunal to refuse leave to appeal was itself a determination within the meaning of Rule 41 and subject to appeal, accordingly, within 42 days of the date of its intimation. Section 9 of the 1993 Act required that, before any application could be made to the court, application for leave should first be made to the Immigration Appeal Tribunal. That was consistent with the terms of the Rules of Court which indicated that an appeal could not be lodged with the General Department until leave had been obtained either from the Tribunal or from the court. The competing submission would require that, in order to protect his position, an appellant who had not received leave from the Tribunal would have to attempt to lodge an appeal before leave had been obtained but, in terms of the statute and the rules, that would be incompetent. Rule 41.20(2) allowed 42 days for the lodging of an appeal from the date on which leave was granted, and it would be illogical to require any different approach in a case where leave was initially refused. That approach was supported by the terms of form 40.2, referred to in Rule 41, which was capable of being applied to the case of an application for leave to appeal as well as to an actual appeal. It was true that there was authority in the case of Bland v. Chief Supplementary Benefit Officer 1983 1 All E.R. 537 that a decision to refuse leave to appeal was not itself an appealable decision. That, however, only applied to the case in which the decision to refuse leave to appeal was made by the authority to which it had been sought to make the appeal. It would be illogical and unfair if the rules were interpreted in such a way that the right to appeal could be lost because of delay on the part of the Tribunal in considering an application for leave to appeal.

[8] For the Secretary of State, it was contended that the application for leave to appeal to the court was not an appeal against the decision to refuse leave to appeal by the Immigration Appeal Tribunal but was a separate and collateral proceeding. As had been held in Bland supra a decision to refuse leave was not itself an appealable decision. On its terms, Rule 41.20 specifically required that the appeal should be lodged within 42 days of the determination appealed against. The substantive appeal was the appeal against the determination dated 6 December 2000. That was clear from the terms of the application itself and both the application and the Rule showed that the only subject-matter of appeal was the substantive decision. If there was any risk of an appellant's right to appeal being prejudiced, the problem could be solved by having recourse to judicial review or to an application to the court, under the general dispensing power, to permit a late application. The practice hitherto followed and the terms of the annotations to the Rules of Court supported the view taken by the Secretary of State.

[9] The particular question raised by this application is not dealt with, in terms, in the Rules of Court. There is no rule which specifically provides for the case in which leave to appeal must be sought, in the first instance, from the Tribunal before any application for leave to the court can be made. No doubt that is because, in all normal circumstances, it would be assumed that the question whether or not leave to appeal should be granted would be dealt with immediately or within a very short time after the initial decision. In our view, it is clear that the 1993 Act expressly requires that an application for leave can only be made to the court after leave has been refused by the Tribunal. Further, it is clear that any purported appeal lodged before leave to appeal had been granted, either by the Tribunal or the court, would have to be rejected as incompetent. There must, however, be some practical means of giving effect to the right of appeal, with leave, conferred by the Act. We are not attracted by the suggestion that recourse might be had to judicial review or to the dispensing power because to do so would be to substitute a discretionary remedy for a right to apply, within a given time, for leave to appeal. We accept that the construction proposed on behalf of the appellant may involve a somewhat forced reading of the statutory provisions and the rules in that, in the ordinary case, a refusal of leave to appeal should not be regarded as an appealable decision, for the reasons set out in the decision in Bland supra. In this case, however, we are not concerned with the question whether or not a right of appeal exists but only with the question of how the statutory right of appeal should be given effect and how time limits should be applied. Bearing that in mind, it seems to us that the reasonable approach is that proposed on behalf of the applicant, namely that the period of 42 days should be taken to run from the date of the refusal of leave to appeal by the Immigration Appeal Tribunal. Bearing in mind the provisions of Rule 41.20(2) it does not seem to us that that construction involves any real risk of excessive delay. If any excessive delay does arise from delay on the part of a Tribunal in deciding whether or not to grant leave to appeal, that is the responsibility of the Tribunal, not a matter attributable to anything contained in the Rules of Court. For these reasons, we allowed the application to be received.