EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Reed Lord Hardie Lord Mackay of Drumadoon	[2010] CSIH 46 XA4/10 OPINION OF THE COURT delivered by LORD REED in appeal by BIRGUL GUVEN Appellant; against SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondents: _______

Appellant: Bryce; Drummond Miller

Respondents: Lindsay; Solicitor to the Advocate General

28 May 2010

Introduction

[1] This appeal under section 103B of the Nationality, Immigration and Asylum Act 2002 (as amended) raises a short point of statutory interpretation concerning the computation of time.

[2] The appellant applied to the respondent for asylum. Her application was refused. She appealed against that decision to the Asylum and Immigration Tribunal, under section 82 of the 2002 Act. On 6 January 2009 the tribunal allowed the appeal. It is accepted that the respondent received notice of that decision on 8 January 2009. On 15 January 2009 the respondent applied under section 103A(1) for an order requiring the tribunal to reconsider its decision on the appeal. In accordance with the transitional provisions contained in paragraph 30 of Schedule 2 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, the application was considered by a member of the tribunal, who decided that it was out of time. The respondent then notified this court that she wished the court to consider her application, again in accordance with paragraph 30. A temporary judge held that the application had been made timeously, and ordered that the appeal should be reconsidered. The tribunal then reconsidered the appeal and, on 7 October 2009, refused it.

[3] In the present appeal, it is accepted by both parties that the decision of 7 October 2009 cannot stand if the court erred in holding that the application for reconsideration had been made timeously, and that the decision of 6 January 2009 must in that event be restored. The question which arises, therefore, is whether the application made on 15 January 2009 was within the period allowed by the relevant legislation.

The relevant legislation

[4] Section 103A of the 2002 Act provides:

"(1) A party to an appeal under section 82, 83 or 83A may apply to the appropriate court, on the grounds that the Tribunal made an error of law, for an order requiring the Tribunal to reconsider its decision on the appeal.

....

(3) An application under subsection (1) must be made -

...

(c) in the case of an application brought by a party to the appeal other then the appellant, within the period of 5 days beginning with the date on which he is treated, in accordance with rules under section 106, as receiving notice of the Tribunal's decision.

(4) But -

(a) rules of court may specify days to be disregarded in applying subsection (3)(a), (b) or (c), and

(b) the appropriate court may permit an application under subsection (1) to be made outside the period specified in subsection (3) where it thinks that the application could not reasonably practicably have been made within that period".

In relation to subsection (3), it is agreed that the date on which the respondent is to be treated as receiving notice of the tribunal's decision, in the present case, is 8 January 2009. In relation to subsection (4)(a), it is agreed that the only relevant rule of court is rule 41.49, which provides:

"(1) In applying section 103A(3)(a) or section 103A(3)(c) of the Act of 2002 (time limits) any day which is not a business day shall be disregarded.

(2) In this rule 'business day' means any day other than a Saturday, Sunday, or public holiday as directed by the Lord President of the Court of Session".

It is agreed that 10 and 11 January 2009 were not business days within the meaning of that rule and must be disregarded. It is also agreed that section 103A(4)(b) has no application in the circumstances of the present case.

[5] The period from 8 to 15 January inclusive comprises eight days. If 10 and 11 January are disregarded, in accordance with section 103A(4)(a), the period is six days. Whether the application was lodged within the period of five days beginning with 8 January therefore depends on whether the words "beginning with" require 8 January to be included in the period or not. In other words, does the period of five days beginning with 8 January commence on that date or on the following day?

The submissions

[6] Counsel for the respondent sought to support the reasoning of the Temporary Judge, which was based on rule 57(1) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005 No 230):

"Where a period of time for doing any act is specified by these Rules or by a direction of the Tribunal, that period is to be calculated -

(a) excluding the day on which the period begins ..."

The period of time specified by section 103A(3) is not, however, "specified by these Rules or by a direction of the Tribunal": it is specified by an Act of Parliament. It therefore does not fall within the scope of rule 57(1).

[7] Alternatively, counsel submitted that section 103A(3) should be interpreted so as to conform to the general rule that the calculation of a period of time excludes the terminus a quo.

Discussion

[8] In Pacitti Jones v O'Brien 2006 SC 616 this court referred (at paragraphs 13-14) to

"... the general rule, long established in Scots as well as English law, that in calculating the period that has elapsed after the occurrence of a specified event such as the giving of a notice, the day on which the event occurs is excluded from the reckoning. That is not, however, an invariable rule.... This approach cannot be applied if, by statute, the court is required to count the date on which the relevant event occurred (in the present case, the employee starting work) as part of the relevant period".

In that case, the court interpreted a statutory provision which stated that the relevant period "begins with the day on which the employee starts work" as meaning that that day must be included in the calculation of the period. The court agreed with the similar approach which had been adopted by the Employment Appeal Tribunal in Pruden v Cunard Ellerman Ltd [1993] IRLR 317 in relation to a provision which described the relevant period as "beginning with" a specified date.

[9] There is indeed a consistent line of authority extending over the last 50 years or so to the effect that, where the period within which an act has to be done is expressed to be a period beginning with a specified day, that is to be taken as demonstrating an intention that the specified day must be included in the period. Examples of this construction can be found in Hare v Gocher [1962] 2 QB 641("if within [the period of two months beginning with the commencement of this Act] the occupier of an existing site duly makes an application ... for a site licence"), Trow v Ind Coope (West Midlands) Ltd [1967] 2 QB 899 ("a writ ... is valid ... for 12 months beginning with the date of its issue") and Zoan v Rouamba [2000] 1 WLR 1509 ("an agreement ...under which ... payments are required to be made within a period not exceeding 12 months beginning with the date of the agreement"). Salmon LJ observed in the Ind Coope case at page 924:

"I cannot ... accept that, if words have any meaning, 'beginning with the date of its issue' can be construed to mean the same as 'beginning with the day after the date of its issue.'"

As Sheriff Simpson remarked in M, Appellant 2003 SLT (Sh Ct) 112 at page 115:

"Wagner's Ring Cycle begins with Das Rheingold, not Die Walkűre. A round of golf begins with the drive from the first tee, not the second hole."

[10] It follows that the period of five days beginning with 8 January, and excluding 10 and 11 January, ended on 14 January. The respondent's application for a reconsideration of the tribunal's decision of 6 January 2009 was therefore out of time.

Disposal

[11] As we have explained, it is agreed that it follows that the decision of 7 October 2009 cannot stand, and that the decision of 6 January must be restored. The parties were agreed that, if the application for reconsideration was out of time, the tribunal should have ordered that the original determination of the appeal should stand, in accordance with rule 31(2)(b) of the Procedure Rules. It is in that event open to this court, under section 103B(4)(b) of the 2002 Act, to make a decision in those terms. That appears to us to be the most appropriate way of disposing of this appeal.