United Kingdom Asylum and Immigration Tribunal

EA (Timeous appeal treated as late) Ghana [2006] UKAIT 00036

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 2

Date Determination notified: 12 April 2006

Before
Mr C M G Ockelton (Deputy President) Mr J Bailey (Immigration Judge) Mr G Peart (Immigration Judge)
Between

EA	APPELLANT
and
ENTRY CLEARANCE OFFICER, ACCRA	RESPONDENT

DETERMINATION AND REASONS

A decision that an appeal is in time, and a decision on whether to extend time for appealing cannot be reversed or reconsidered within the Tribunal. But a clearly in-time notice of appeal gives rise to a pending appeal, which is not brought to an end by an (incorrect) statement that the notice of appeal was out of time. The Tribunal therefore has power to reverse such a statement if the evidence clearly shows that the notice of appeal was in time. (N.B. Such powers are to be exercised only by the member of the AIT appointed to have oversight of the Registry at Loughborough.)

NOTE
1. The Appellant applied for a visitor's visa and was refused, the date of service of the decision being 22 July 2005. He had until 28 August 2005 to lodge an appeal against that decision. Under Rule 6(2) and (4) he could chose whether to serve the notice on the Tribunal or on the Entry Clearance Officer. It appears that he did both. The copy of the notice served on the Tribunal arrived on 26 August. It was seen by an Immigration Judge who decided that it was out of time and refused to extend time. Notice of that conclusion was sent to the Appellant.
2. He replied stating that he had served a notice of appeal on the Entry Clearance Officer by post on 13 July 2005 and that he had seen proof of delivery signed by Mr E Adayit of the Visa Section in Accra dated 14 July 2005 at 9:09am. We see no reason to dispute that statement by the Appellant. It follows that his appeal was in time.
3. Where a notice of appeal is served late, the Tribunal may extend the time for appealing if it is satisfied that by reason of special circumstances it would be unjust not to do so. By Rule 10(6), "the Tribunal must decide any issue as to whether a notice of appeal was given in time, or whether to extend the time limit for appealing, as a preliminary decision without a hearing". That means that the Tribunal's decision on such an issue cannot be the subject of reconsideration by the Tribunal, because section 103A(7)(a) excludes reconsideration of procedural, ancillary or preliminary decisions. It follows that, under normal circumstances, such a decision can be challenged only by Judicial Review. In the case of a notice of appeal given out of time, there is no doubt about the effect of that restriction. An appeal can be brought out of time only if time is extended by the Tribunal, and a refusal to extend time cannot be the subject of any reconsideration or review by the Tribunal itself. Similarly, a decision (if the matter is contested) that an appeal was lodged in time cannot be the subject of a reconsideration at the instance of the Respondent: Judicial Review is the only remedy.
4. The position is, however, rather different in relation to a decision that an appeal was lodged out of time. An Appellant whose appeal is in fact in time needs no permission to pursue it. By s104(1) of the 2002 Act his appeal is pending before the Tribunal during the period beginning when it is instituted and ending when it is finally determined, withdrawn or abandoned. There can be no doubt that the service of an in-time notice of appeal institutes an appeal for these purposes.
5. There may be cases in which the facts are not clear, so that the question whether the appeal was in time needs a judicial answer. But if it is clear that the appeal was in time a wrong decision that it was out of time does not "determine" the appeal, which therefore remains pending. Because no permission is needed to pursue an in-time appeal, in a clear case a decision purporting to refuse to allow it to proceed is formally of no effect – although, of course, unless it is queried, the appeal is unlikely ever to be determined.
6. If a member of the Tribunal is persuaded that a notice of appeal to the Tribunal which has been treated out of time was in fact clearly given in time, he should ignore the decision that it was out of time and give parties notice that despite the Tribunal's previous indication there is an appeal pending before it which will proceed to determination. That we do in this case.

C M G OCKELTON

DEPUTY PRESIDENT

Date: