ASYLUM AND IMMIGRATION TRIBUNAL

OI (Notice of decision:  time calculations) Nigeria [2006] UKAIT 00042 
	
THE IMMIGRATION ACTS

Date of Publication: 10 May 2006 

Before:

Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
 Immigration Judge Bailey
Immigration Judge Peart

Between

Appellant
and

ENTRY CLEARANCE OFFICER, LAGOS
Respondent

Service of notices of immigration decisions is governed by the Notices Regulations (SI 2003/658).  The requirements of service by post need to be followed for service by post to be effective;  and the deemed times in those Regulations are of importance in calculating the time for appealing.  Similarly, the time for appealing itself is as set out in the Tribunal’s Procedure Rules even if there is other or misleading information in the Notice of Decision.  If the officer making the decision chooses not to date it or to indicate the method of service, the Appellant’s statements on those issues may well be unchallengeable.

DETERMINATION OF ISSUE

1.	The Appellant applied to the Entry Clearance Officer for a student visa.  His application form is dated 9 January 2006.  He was refused.  He submitted a notice of appeal to the Asylum and Immigration Tribunal.  It contains an application for the extension of time.  It was received in the Tribunal on 24 February 2006.

2.	Questions relating to whether the notice of appeal was in time and whether time should be extended are to be determined as preliminary issues without a hearing and on the basis only of the matters set out in rule 10(6).  Some issues raised by this appeal are of more general application:  but the restrictions imposed by the Procedure Rules still apply.

3.	We must describe the two principal formal documents before us.  The first is the notice of immigration decision, refusing the Appellant his entry clearance.  At the top, there are spaces for the post’s reference, and the Appellant’s name is entered.  The first paragraph of the text (which may well be in standard form) is as follows:

“You have applied for entry clearance to enable you to study in the UK and have completed an additional questionnaire to assist your application.  I have carefully considered your application on the basis of your passport, application form, supplementary questionnaire and the papers you have provided.  You have declared that the information you have given is complete and true to the best of your knowledge.”

4.	There then follows the substantive refusal and reasons.  Then there is this:

“I therefore refuse your application.

Entry Clearance Officer:  I M-W			Date of Refusal			“

5.	There are then some paragraphs indicating the rights of appeal, in accordance with the requirements of the Immigration (Notices) Regulations 2003 (SI 2003/658), ending with the following:

“TIME LIMIT FOR APPEALING
The completed appeal form should arrive not later than 28 days after the date of this notice.  The completed appeal form must be signed and dated.”

6.	Following that, and in fact on the next page of this particular notice, is the following:

“A notice (of which this is a copy) was handed to me at The British Deputy High Commission, Lagos
The contents have been translated to me in English
Applicants’ Signature: _________________ Date: __________________”

7.	The appeal form submitted by the Appellant is signed by him and dated 14/02/2006.  We need refer only to the first two sections of it.  The first section is headed “Your decision”.  The notes at the top of the form give the instruction “Please complete Section 1 of this form by referring to the notice of refusal that was sent to you by the Entry Clearance Officer”.  The Appellant has completed that section by filling in the post reference number, the type of decision (“non-settlement”), the name of the British Mission, the date of service, which he has entered as “02/02/2006”, the “Deadline to appeal”, which he has entered as “02/03/2006”, and the method of service (post).  The notes to Section 2 are as follows:

“The deadline to appeal is 28 calendar days from the date you were served with the decision.  Your appeal must be received by the Visa Section or the Tribunal by the end of this period.  In accordance with the Asylum and Immigration Tribunal (Procedure) Rules 2005, you must not send your appeal to both locations.

If you know your appeal is late, or if you are not sure your appeal will be received by the deadline date, you must apply for an extension of time, and give your reasons for failing to submit your appeal in time, in the box.”

8.	The Appellant has written the following in the box:

“I am applying for extension because in Nigeria, visa application are sent to the embassy and return by the embassy through post.  The date of refusal was 02/02/2006 but the forms got back to me on the 13/02/2006.  I finally sent my appeal on the 15/02/2006.”

9.	The appeal was sent to the Tribunal, not to the High Commission.  The Appellant completed the final section of the application form to indicate that he was sending the appeal to the Tribunal.  He did so and, as we have indicated, it was received on 24 February.

10.	The notice of refusal appears to us to raise a number of issues.  The first is that it is not dated.  Evidently the Appellant was aware by some means of its issue on 2 February, perhaps because it was sent to him with a covering letter.  But we have not seen any such letter, and no appellant is required to send any letter from the Entry Clearance Officer (as distinct from the notice of decision) with his appeal.  It is, we think, right to say that the Notices Regulations do not require the notice of decision to be dated.  But the form of decision used in this case appears to require a date, although none has been entered;  and it is obviously good administrative practice to date such a notice.  If the Entry Clearance Officer chooses not to enter a date on the notice of decision, it is very unlikely that there will be any evidence of the date of the decision other than that offered by the Appellant.  It follows that, in the case of an undated notice, the Tribunal will generally have to accept the Appellant’s statement as to the date of the decision.

11.	The next feature of the notice which causes concern is the statement about the time for appealing.  As we have indicated, the notice of decision requires a completed appeal form to arrive (whether with the Respondent or with the Tribunal) “no later than 28 days after the date of this notice”.  Even if there were a date on the notice, that paragraph is simply wrong.  The time limit for an appeal by a person not in the United Kingdom is that set out in rule 7(2) of the Asylum and Immigration Tribunal (Procedure) Rules 2005, and is not later than twenty-eight days after he is served with notice of the decision.  Service of the decision itself is governed not by the Tribunal’s Procedure Rules, but by the Notices Regulations.  They provide, in Regulation 7, as follows:

“Service of notice
7(1)	A notice required to be given under regulation 4 [that is, a notice of an appealable immigration decision] may be –
(a)	given by hand;
(b)	sent by fax;
(c)	sent by postal service in which delivery or receipt is recorded to –
[the applicant’s nominated or last known address]
…
(4)	Where a notice is sent by post in accordance with paragraph (1)(c) it shall be deemed to have been served, unless the contrary is proved, - 
(a)	…
(b)	on the twenty-eighth day after it was posted if it is sent to a place outside the United Kingdom.
(5)	For the purposes of paragraph (4) the period is to be calculated – 
(a)	excluding the day on which the notice is posted … .”

12.	The expression of the time for appeal by relation to the date of the notice is therefore technically always wrong.  If service is effected by hand on the day that the notice is dated, the twenty-eight days for appealing will indeed begin to run immediately, not because the period begins with the date of the notice, but because it begins with the service.  If the notice is sent by post, the twenty-eight days for appealing will under normal circumstances not begin to run until the expiry of twenty-eight days after the date of posting.  The date of the notice is never as such the appropriate date for beginning the period, and no statement to applicants should say that it is.

13.	Although there is, as we have indicated, a place on this notice for an endorsement of personal service, it has not been completed.  The first paragraph of the notice of refusal, which we have set out above, does not suggest that there was any personal contact between the Appellant and the Entry Clearance Officer.  The Appellant asserts that the notice of decision was sent by post.  We see no reason at all to doubt that assertion.  

14.	What we do not know, because neither party has provided any evidence of the matter, is whether the service by post was effected in the manner specified by Regulation 7(1)(c).  It is clear from that Regulation that service by an ordinary (unrecorded) postal system is not effective service under the Regulations;  and, as presently advised, we should be inclined to say that service by courier or private document transmission service is also not permitted by the Regulations.  It is clearly open to Entry Clearance Officers to indicate the method of service on the notice itself.  Clearly it is intended that they do so where service is by hand;  but if service is effected by fax or by post under Regulation 7(1)(c), the Entry Clearance Officer should say so.  If the Entry Clearance Officer does not take the opportunity of saying so, the Tribunal is again unlikely to have any evidence other than that of the Appellant.

15.	The Notices Regulations are clearly made for the benefit of those who receive the notices, and as a result the Tribunal has regularly held that an applicant or appellant may waive a requirement of the Regulations by submitting a notice of appeal even if the Regulations have not been fully complied with.  But an applicant is entitled to require compliance with the Regulations, and if a notice has not been served by one of the methods specified in Regulation 7(1), it has not been lawfully served at all, and in that case time has not yet begun to run against any intending appellant.

16.	Our conclusions on the issues raised by this notice of decision are, first, that notices of decision should always be dated.  Secondly, the notice of decision should indicate the means by which it was served;  if it was served by post, the notice of decision should indicate the date of posting and the particular postal service employed in order to show that service was in accordance with Regulation 7(1)(c).  Thirdly, notices of decision must contain accurate (rather than misleading) information about the time limit for appealing.

17.	We turn now to the notice of appeal in this case.  We understand that there is a commonly-held view that the intention was that section 1 of the form should be completed by the Respondent.  Certainly its terms, including a specified deadline for appealing, might be thought to be more appropriately the Respondent’s responsibility.  But the notes at the top of the form as issued make it clear that it is for the Appellant to complete section 1.  His task in doing so is likely to be of some difficulty.  He is required to indicate the date of service of the decision.  He must presumably calculate this in accordance with Regulation 7 of the Notices Regulations.  We do not know whether he is provided with a copy of the Regulations.  He must then enter the “deadline to appeal”.  This he must calculate in accordance with the Tribunal’s Procedure Rules.  We do not know whether he is provided with a copy of them.  In the present case, he appears to have been provided with an undated notice, no very specific indication as to the method of service and only misleading information about the terms of the Regulations and the Rules.  What is clear that in a case in which so little of the formal information has been given by the Entry Clearance Officer, the Appellant’s entries in section 1 and section 2 of the form will have the highest importance, as they will in many cases be unchallenged and unchallengeable assertions of fact as to the relevant dates.

18.	In the present case, the Appellant asserts that he received the notice of refusal on 13 February 2006.  If the service was indeed by post on 2 February, service would (under Regulation 7(4)) have been effected on 2 March 2006, from which he would have had twenty-eight days to appeal.  There is no reason not to accept his statement that he received the form on 13 February, rather earlier than that allowed by Regulation 7(4).  His twenty-eight days ran from 13 February and therefore expired on 13 March (rule 57(1)(a) provides that the first day is to be ignored in calculating the period of twenty-eight days).  The Appellant entered 2 March 2006 as the “deadline to appeal”, probably because he was misled by the terms of the notice of decision.

19.	The Appellant filled in the form to apply for an extension of time, probably because he did not know how long it would take for the forms to get to the Tribunal in England.  In fact, their arrival on 24 February 2006 was well in time and no question of extension of time arises.  

20.	The notes to section paragraph 2 of the form, which we have set out above, are those in the form annexed to the Rules.  We are nevertheless mildly surprised to see that they assert that the Rules prevent notices of appeal being sent to both the Respondent and the Tribunal.  The relevant rule is rule 6:

“Giving notice of appeal
6(1)	An appeal to the Tribunal may only be instituted by giving notice of appeal against a relevant decision in accordance with these Rules.
(2)	Subject to paragraphs (3) and (4), notice of appeal must be given by filing it with the Tribunal in accordance with rule 55(1) [which sets out the procedures for service on the Tribunal].
…
(4)	A person who is outside the United Kingdom and wishes to appeal against a decision of an entry clearance officer may give notice of appeal either -
(a)	in accordance with paragraph (2);  or
(b)	by serving it on the entry clearance officer.”

21.	Paragraph (4) of rule 6 does not end with the words “but not both”.  We can see no reason why it should be interpreted as including those words.  We appreciate that it is administratively convenient if the notice of appeal is served in only one place, but we cannot conceive what is the sanction against a person who serves on both possible addressees.  We think it very unlikely that if one arrived in time and one arrived out of time he would be regarded as not having appealed in time.  In the context of this appeal, however, we do not need to reach a concluded view on that issue.  

22.	For the reasons given in paragraph 19, the notice of appeal in this case was in time.  The appeal will now proceed to determination.

C M G OCKELTON
DEPUTY PRESIDENT
          Date: