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Cite as: [2004] UKIAT 00182, [2004] Imm AR 515, [2004] UKIAT 182, [2004] INLR 482

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APPEAL No. MM and others(Out of time appeals) Burundi * [2004] UKIAT 00182

STARRED

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 14 May 2004

Date Determination notified: 7 July 2004

Before

The Honourable Mr Justice Ouseley (President)

Mrs J A J C Gleeson (Vice President)

Mr P R Lane (Vice President)

Between

MM and others	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellants: Mr K McGuire, instructed by Moss Beachley Mullem & Coleman (MM)

Ms S Solomon, instructed by Parker Bird Solicitors (CN)

Mr R Solomon, instructed by Hoshi & Co Solicitors (MG)

For the Respondent: Mr A Hutton, Home Office Presenting Officer

DETERMINATION AND REASONS

Introduction

These are three appeals which raise similar issues as to the jurisdiction of the Tribunal to hear appeals from decisions of Adjudicators on what are sometimes, but not always aptly, called "preliminary issues". Each case involves the decision by the Adjudicator that an appeal from an immigration decision of the Secretary of State was out of time under the Rules and that the discretionary power to extend time should not be exercised in the Appellant's favour. These cases are concerned, as we shall explain, with the Immigration and Asylum Appeals (Procedure) Rules 2003, in force on 1^st April 2003 subject to transitional provision. There was an issue as to whether it was those Rules or the predecessor 2000 Rules which applied to the appeal of MG.

The general issue is whether those are appealable decisions within the scope of section 101 of the Nationality, Immigration and Asylum Act 2002 and the 2003 Rules: must they be "determinations" and, if so, are they "determinations"?

The Facts

The Adjudicator, Mr J R Aitken, decided on 23^rd December 2003 that the Notice of Appeal had been given out of time. The Respondent had contended in writing that it was too late and the Appellant's solicitors had failed to persuade the Adjudicator otherwise in their written response. The Adjudicator also said that they had given no reason why time should be extended. So, under Rule 10 of the 2003 Rules, he decided that the appeal was out of time and refused to extend time. Leave to appeal was granted and the grant of leave raised the question of whether there was jurisdiction to hear an appeal from such a decision. It was conceded before us, as was evident from the papers before us, that the appeal had in fact been lodged within time and that the Secretary of State and Adjudicator had counted time from the wrong start date, taking the date of the Secretary of State's refusal letter rather than the date of its receipt.

The Adjudicator, Mr Poole, decided on 20^th October 2003 that the appeal was out of time and that there were no reasons for extending time. It was not in dispute that the appeal was out of time by about five weeks. The complaint was that the Adjudicator had ignored the reasons provided for an extension of time under the Rules and ought to have found that the explanation satisfied him that special circumstances made it unjust not to extend time. This was reinforced with new evidence before us. The grant of leave to appeal raised the jurisdiction issue but did not suggest that it should be dealt with separately from the merits of the extension of time if the Tribunal had jurisdiction. We extended time for her appeal to us.

The Adjudicator, Ms C Jarvis, in a decision dated 2^nd July 2003 held that the appeal was out of time and that there were no special reasons for extending time. It was not at issue but that the appeal was submitted late; it was said that the Adjudicator had overlooked the reasons given for seeking an extension of time. The Adjudicator rightly rejected the Secretary of State's start date for the running of time because on the documents before her it was probable that the relevant decision was made on 26^th January 2001. Before us, it is clear that that was so and service was effected on the 28^th January 2001. The Notice of Appeal was lodged on 20^th February 2001 with the Secretary of State as the Rules require and not at the IAA, with certain consequences which follow all too commonly. A letter of the same date explained why the appeal was late; it was sent with the Notice of Appeal to the Home Office.

The appeal came on for hearing on 23^rd June 2003. It had been sent to the IAA by the Secretary of State on 1^st May 2003, alleging, on any view incorrectly, that the appeal was a year out of date. Meanwhile, the Appellant had changed address and solicitors on a number of occasions; they had each kept the Secretary of State informed of those changes but not the IAA. This is not uncommon either for practical reasons; the Secretary of State has the file until it is passed to the IAA; it is the Secretary of State who needs to correspond with the Appellant up to that date and there is no file or file reference at the IAA with which any letter indicating any change of address or of solicitor can be associated. It is exceedingly difficult to link that sort of unreferenced correspondence to a file when it comes in, because of the number of files and letters.

The last change of address and of solicitor occurred before the file was sent to the IAA. Even if the Appellant had sent those details to the IAA, it is very unlikely that the IAA would have retained the details, in those circumstances. If the notifications had been sent to the IAA making it clear that an appeal had been lodged, bearing the Home Office reference number, and if it was clear from IAA records (IRIS) that the appeal papers had not yet been forwarded to the IAA by the Home Office, the IAA would routinely have sent the letter to the Home Office for it to update its file, so that when the appeal was sent to the IAA by the Home Office, it would appear on the newly received file. The Appellant is informed that that has been done and that the appeal is still at the Home Office. No copy or record of the Appellant's letter is kept by the IAA. Accordingly, the ability of the IAA to notify Appellants correctly of the date and place of the hearing of their appeals, is critically dependant on the Home Office forwarding the complete file to the IAA.

From the files before us, it appears probable that the notification of changes of solicitors and addresses were not forward by the Home Office to the IAA and it is for that reason that the Appellant was not represented before the Adjudicator; notice was sent to solicitors who had ceased acting more than a year previously and had had no contact therefore with the Appellant.

Although the Appellant did not comply with the Rules as to notification of changes of address to the IAA, compliance would have made no difference to what the IAA did, because none of the changes occurred after the file had been received from the Home Office, and the IAA would have simply reacted to any notifications received before that event by sending them to the Home Office. Direct notification to the Home Office alone simply reflected what would have been achieved at best by notification to the IAA at any stage up to its receipt of the file.

It also seems to us probable that the letter which contained the explanation as to why the Notice of Appeal was out of time was not forwarded to the IAA by the Secretary of State or, if so, was not linked to the file and was therefore not seen by the Adjudicator. We are sure that she would have referred to it, had she had it. Briefly, the Appellant's accommodation had burnt down on 20^th January 2001, he had been made homeless, the property was boarded up and it was a while before he received the refusal letter. Had she received that explanation and accepted it, it would have persuaded the Adjudicator to extend time. There was no reason not to accept it and in the light of the Appellant's later endeavours to keep in touch, we would accept it and extend time if we have jurisdiction to do so. Indeed, Mr Hutton for the Secretary of State, accepted that if we had jurisdiction to do so, we should allow the appeal, extend time to appeal and remit the case.

The additional issue in this case was whether the 2003 or the 2000 Rules applied.

The Nationality, Immigration and Asylum Act 2002

Sections 101, 102 and 103 of the Nationality, Immigration and Asylum Act 2002 state in so far as relevant:

"101(1) A party to an appeal to an adjudicator under section 82 or 83 may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator's determination on a point of law.

102(1) On an appeal under section 101 the Immigration Appeal Tribunal may –

(a) Affirm the adjudicator's decision

(b) Make any decision which the adjudicator could have made …

(c) In reaching their decision on an appeal under section 101 the Tribunal may …

103(1) Where the Immigration Appeal Tribunal determines an appeal under section 101 a party to the appeal may bring a further appeal on a point of law –

(a) Where the original decision of the adjudicator was made in Scotland, to the Court of Session, or…

(3) The remittal of an appeal to an adjudicator…is not a determination of the appeal for the purposes (of the Act)." (Our underlining.)

The 2003 Rules

"10(1) Where a notice of appeal is given outside the applicable time limit in rule 7, the appellant must –

(a) state in the notice of appeal his reasons for failing to give the notice within that period, and

(b) attach to the notice of appeal any written evidence upon which he relies in support of those reasons.

(2) Where the respondent receives a notice of appeal outside the applicable time limit, he may treat the notice as if it had been given in time, if satisfied that by reason of special circumstances it would be unjust not to do so."

Provision is made for the filing of evidence in relation to the timeliness of an appeal and any extension of time. Rule 10 continues:

"10(6) If the appellant files evidence under paragraph (4), an adjudicator must decide whether the notice of appeal was given in time.

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

(8) The adjudicator must decide the issues in paragraph (6) and (7) –

(a) without a hearing; and

(b) on the basis of the documents filed by the respondent and any written evidence filed by the appellant.

(9) The appellate authority must serve notice of the adjudicator's decision on the parties."

There are provisions requiring appeals to be considered at a hearing except for circumstances where it lapses or is treated as abandoned or withdrawn.

Part 3 deals with appeals to the Tribunal. Rule 14 (1) provides:

"14(1) This Part applies to appeals to the Tribunal from the determination of an adjudicator."

The same word "determination" appears in the definition of "appellant" in Rule 15 as one who appeals against a "determination" as the subject matter of the appeal, and in Rule 16 as the document, service of which starts time for the appeal running. Rule 17 appears to draw a distinction between the "decision" and the "determination"; the latter is where the alleged errors of law are to be found, yet it is the former which must have been affected by those errors. The Rules governing the Tribunal use "determination" to cover the decision on an application to appeal and the decision on that appeal. It is the "determination" which in turn leads to the right of appeal to the Court of Appeal. Rule 45 provides for appeals to be determined without a hearing in certain circumstances.

It is however a "decision" which is made to grant or refuse bail. Rule 49, which deals with the burden of proof and cannot apply only to the Secretary of State's decision, refers to an appeal against the relevant decision. Rule 53 covers the giving of determinations:

"53(1) This rule applies where an adjudicator or the Tribunal determines an appeal or an application for permission to appeal under any of Parts 2, 3 or 4 of these Rules.

(2) The appellate authority must record the decision of the adjudicator or the Tribunal and the reasons for it.

(3) Unless a rule provides otherwise, the appellate authority must serve on –

(a) every party; and

(b) any representative acting for a party,

a written determination containing the decision of the adjudicator or the Tribunal and the reasons for it."

It is important to note that there is no definition of "determination" in either the Rules or in the Act. This contrasts with the position under the 2000 Rules in which Rule 2 defined "determination" as meaning the "decision of the Appellate Authority to allow or dismiss an appeal and the reasons for that decision".

Earlier Tribunal decisions

The impact of that definition of "determination" in the 2000 Rules was considered in the Tribunal decision in B (Zimbabwe) [2004] UKIAT 00076, notified on 23^rd April 2004. That concerned an appeal which was lodged well out of time and where the Adjudicator decided in consequence that there was no valid appeal before her. As with the decisions here, the Adjudicator had not dealt with the merits of the appeal at all and had simply declined to extend time. In paragraph 8, the Tribunal said:

"8. … It is common ground, as we understand it, between the parties, that if that is in truth a determination as defined by Rule 2 or as intended by the relevant provisions of the 1999 Act, then it would amount to an implied dismissal of the Appellant's appeal and would carry a right of appeal (subject, again, to requirements as to notice and time) to the Immigration Appeal Tribunal. If on the other hand, the document signed by the Adjudicator is not a determination as defined, it is difficult to see that there could be a right of appeal to this Tribunal."

It pointed out that there were a number of types of decision made by the Tribunal which were treated as "determinations" under earlier Rules. It referred to the policy which underlay the 1999 Immigration and Asylum Act of discouraging late notices of appeal which would have the effect of suspending removal.

It concluded in paragraph 12:

"12. … if an Adjudicator decides that there is no jurisdiction to hear an appeal for some reason other than time, then it is right that that decision should be subject to examination and re-determination by the Tribunal, because what the Adjudicator may have done is to decline to hear an appeal which was in fact valid and pending before him. In the present case, unless the Adjudicator decides to exercise an inclusionary discretion in order to hear an appeal which at its inception is invalid, then there is no appeal before the Adjudicator."

So it concluded that it had no jurisdiction in that case and that any challenge to that decision of the Adjudicator had to be made by Judicial Review, as it was not a "determination". But the Tribunal made it clear that it was reaching a view only on the 1999 Act and the 2000 Rules, and not on the later provisions with which we are concerned.

We were also referred to the decision in SSHD v Nzinga, a Tribunal decision of 25^th February 2000 under the 1971 Act and the 1996 Rules. The question was whether the decision of the Adjudicator to treat a Secretary of State's decision as withdrawn for failure to comply with directions was a determination which could be appealed. There was no definition of "determination" in the 1996 Rules. The Act seemed to use the words "determination" and "decision" almost synonymously. The Tribunal held that it had jurisdiction to hear an appeal.

In Gremesty 23^rd February 2001, the Tribunal considered whether under the 2000 Rules, a decision to treat an appeal as abandoned was one which could be appealed to the Tribunal; the question arose because it was thought that such a decision merely recognised a state of affairs to exist. The Tribunal held that it was appealable because it was in reality a determination which led to the dismissal of the appeal and it would have been absurd if the dismissal of the appeal with consideration of the merits, an option open to that Adjudicator, had led to a right of appeal.

Conclusions on the jurisdiction issue

Mr Hutton for the Secretary of State submitted that there has in effect been no change of significance in the legislation with the dropping of the specific definition of "determination". He also said that, in line with the reasoning in B (Zimbabwe), "an appeal to an adjudicator" in section 101 could only mean a valid appeal and that did not include an appeal which was out of time and in respect of which the Adjudicator had refused to extend time.

Of course, there is force in the point that there needs to be an appeal before there can be a decision or determination of it but if an "appeal" meant a valid appeal the Tribunal cannot be prevented from examining whether the appeal was valid. That, indeed, was what the Tribunal decided in B (Zimbabwe); it accepted that the Tribunal had jurisdiction to hear an appeal where the issue was whether there was or was not a valid appeal. This would mean that under either the old or new Rules the Tribunal would have power to hear an appeal on a point of law where the issue was whether the Adjudicator had wrongly held that the appeal was invalid as out of time. This would be a good example of the error of fact as error of law jurisdiction which was defined in E v SSHD [2004] EWCA Civ 49.

But we do not accept the wider submission of Mr Hutton. The Tribunal, under the 2002 Act and the 2003 Rules has power to hear appeals from the determinations of Adjudicators. There is now no definition of "determination" which limits the application of that power to those decisions which allowed or dismissed an appeal.

The 2002 Act uses the word "determination" in section 101 and "decision" in section 102 to refer to the same decision or determination. It cannot have been intended to give the word "determination" a very specific meaning, limiting rights of appeal, if Parliament then uses the words indifferently and seemingly synonymously. We do not accept that the limitations of the definition in the 2000 Rules should be carried over into the new Rules when Parliament has not so provided. It is that very specific definition which led to the decision in B (Zimbabwe).

In the absence of the limiting effect of the former definition of "determination", there would appear to be every reason to treat a decision to refuse to extend time for lodging an appeal as a determination of it. It is a decision which concludes the appeal and finally disposes of it; it determines it. It is the decision on the appeal; there will be no more. The language of the Act in sections 101 and 102 support that broadening of the word "determination" to cover decisions which would finally dispose of the appeal, subject to onward rights of appeal. That is the context in which they operate. That is also consistent with the Rules and Rule 53 in particular; the determination is the written decision and the reasons for it. The written reasoned decision that time for lodging an appeal should not be extended is the determination of the appeal. That also covers those decisions which confirm that an appeal is at an end, eg in relation to the abandonment or withdrawal of an appeal. We do not for a moment think that "determination" is broad enough to cover the many and varied procedural decisions which an Adjudicator may make in the course of an appeal but which do not bring it to an end. Those are not appealable. This would be consistent with the jurisprudence of the Tribunal before the 2000 Rules and with Gremesty. The area to which B (Zimbabwe) applied and to which it no longer applies is the appealability of a decision by an Adjudicator to refuse to extend time for appealing. The grant of an extension however is not appealable; it does not dispose of the appeal.

It was suggested by Mr Hutton that there was no policy reason for the change in the Rules; Parliament, if anything, would have been trying to tighten them up and would scarcely have allowed greater rights of appeal, as would happen if the Tribunal had a wider jurisdiction than before; it was an oversight that the definitions had been dropped. He had to accept, however, that the decisions at issue would be challengeable by the more prolonged process of judicial review if he were right. It seems to us that the Tribunal was right in B (Zimbabwe) to point to the policy of the Act as showing what Parliament envisaged. But the change in wording may well be the consequence of its realisation that the removal of rights of appeal would simply lead and did in fact lead to Judicial Review of the decision, rather than to an absence of challenge to the decision. The re-instatement of the rights of appeal reflects the need for the greater speed which a specialist appellate Tribunal can bring. If this change had simply been an accident, as he suggested, then it has been a sound step towards the achievement of the overriding objective as set out in the Rules nonetheless.

The effect on the individual appeals

This means that the appeal of MM is allowed and the appeal is remitted for hearing. The Adjudicator made an error of law in counting time from the wrong start date. The date when the Secretary of State letter was served is a known fact and was known at the time of the Adjudicator's decision but was inaccurately presented; it is not contentious once ascertained. The error was not the Appellant's fault and arose in part from the Secretary of State's wrong calculations of time. At all times there was a valid appeal which has not been heard. A similar result would have been achieved under the 2000 Rules in line with the decision in B (Zimbabwe).

However, there are further considerations which apply in CN's appeal. Ms Solomon argued that the Adjudicator had erred in law in refusing to extend time because in paragraph 5 he said:

"Under the Rules the letter of 8^th October could only be used to challenge the fact that the Appeal was lodged out of time, but the letter concedes that it was lodged out of time."

This, she said, showed that he had ignored the explanation for the delay provided by the then solicitors and had treated that explanation as going solely to whether the appeal was in time. She is right that the Adjudicator erred in that paragraph because although the reasons for any extension should appear in the Notice of Appeal (Rule 10 (1) (a)), Rule 10 (8) requires the written evidence to be considered in deciding whether to extend time; the failure to comply with the Rules does not preclude other evidence showing the reason for the extension being sought. But her argument is without sound foundation when the decision is read as a whole. It is clear that the Adjudicator did consider the explanation on its merits and rejected it as insufficient. He was right to do so. He said in paragraph 6:

"I take the view that the Appeal having been lodged out of time, no explanation whatsoever has been put forward as to why that had happened. The letter of 8^th October makes mention of the lateness being neither the Appellant's fault nor Asghar & Co's fault, but I have been given no explanation at all as to whose fault it was. I can only assume that it was the fault of the Appellant."

Mr Chowdry, the solicitor with Asghar & Co who had responsibility for the file, put in a signed statement to the Tribunal saying that he had omitted to say in the letter of 8^th October 2003 that the fault lay with the late receipt of the papers from the Appellant's previous solicitors on 25^th September 2003. The letter from the previous solicitors sending the papers is dated 19^th August 2003, with a simple receipt date stamp of 25^th September 2003 put on it. There is no reason why this further information could not have been before the Adjudicator and none was offered to us beyond that it was yet another error by solicitors. That explanation for the omission does not satisfy the requirements for its admission as fresh evidence.

But even taking it at face value, there is nothing to suggest that the previous solicitors were ever chased for the papers even though time was running out, or that the Appellant was asked to supply those papers which she would have had also sent to her, or that there was any protest to the previous solicitors or the delivering organisation at the late arrival of the material. It is not a good explanation for the delay even if the evidence about it is admitted.

We have also examined the grounds of appeal and the material available to us to see if there is any obvious point of real merit which would be shut out. There is none: the Secretary of State's letter of refusal is thorough and focused on the claims made by the Appellant. The grounds of appeal are general in the extreme, making no attempt to grapple with what the Secretary of State said and merely saying that the substance would follow. Nothing further has been provided to us; so even though the potential merits of a case can influence the way in which procedural issues are decided particularly in this area, there is no material which can assist the Appellant. We do not think that the Adjudicator erred in his approach. Rule 10(2) permits time to be extended if there are special reasons which make it unjust not to extend time. There are none; even if the fresh evidence is admitted, we would not extend time ourselves. Accordingly, the appeal of CN is dismissed.

We add that there has been no attempt to put to the previous solicitors the failings said to be attributable to them; that should always be done where there is an allegation that another firm of solicitors was at fault. It is all too easy an allegation to make and failure to raise the issue with those who might rebut it does not assist the credibility of the allegations.

Which Rules apply to MG?

Mr Solomon accepted that his case was significantly more straightforward if he was right that it was governed by the 2003 Rules, which he said it was, than if the 2000 Rules applied. Mr Hutton did not accept his argument but was not able to counter it effectively and we accept it. Mr Solomon accepted that the Adjudicator was right to consider the lateness of the appeal and an extension of time under the 2000 Rules; this was because at 1^st April 2003, the appeal pending before the Adjudicator was one to which the 2000 Rules applied.

However, the transitional provisions for the 2002 Act provide as follows. Schedule 2, paragraph 1(4A) to Commencement Order No 4 (SI 2003, No 754) to the 2002 Act, Schedule 2, paragraph 1(4A) section 101 of the 2002 Act, which deals with appeals to the Tribunal from determinations of Adjudicators, applies to appeals to Adjudicators determined, as here, after 9^th June 2003. Section 102 also applies. Paragraph 1(4B)(b) to the Commencement Order then disapplies paragraphs 7, 22 and 23 of Schedule 4 to the 1999 Act. That disapplication is important because it is paragraph 22 which governs the appeal to the Tribunal against the "determination" of the Adjudicator in accordance with the 2000 Rules, and which contain the restrictive definition of "determination", so crucial to the decision in B (Zimbabwe).

The result is consistent with what the 2003 Rules show.

The 2003 Rules revoked the 2002 Rules on 1^st April 2003. Rule 61(1)(b) applies the 2003 Rules to any appeal to the Tribunal made after 1^st April 2003 under an enactment other than the 2002 Act to which the 2002 Rules would have applied if they had not been revoked. Therefore whether the 1999 Act or the 2002 Act applied, the 2003 Rules apply to the appeal to the Tribunal. The modification in Rule 61(2) is irrelevant. The provisions in Rule 61(4)-(9) do not apply.

Accordingly, the new regime now applies to this appeal and the same reasoning that meant that MM and CN could appeal to the Tribunal applies to MG's appeal.

On the merits of the appeal against the refusal to extend time, the adjudicator was not aware as a matter of fact that an explanation for the delay had been provided and had been omitted from the file, for whatever reason. This can be seen either as an error of law by uncontentious error of fact or as an omission to take a material factor into account. There had seen a failure to serve notice of the hearing on the Appellant although Rules 39 and 55 were strictly complied with by the IAA, and the obligation on the Appellant to notify the IAA of changes of address had to been complied with. This failure arose because the changes notified to the Home Office do not appear to have been sent to the IAA; if they were, the error was then that of the IAA. The failure would not have been avoided if the Appellant had complied with the Rules. Accordingly, there was procedural unfairness, unknown to the Adjudicator in the Appellant not being given notice of the appeal hearing in a way which would have enabled him to attend and proffer the explanation for the late lodging of the appeal.

For those reasons the appeal of MG is allowed. The appeal of MM is also allowed. The appeal of CN is dismissed. This decision is to be starred for what it says about rights of appeal.

MR JUSTICE OUSELEY

PRESIDENT