Birgul Guven V. Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Hardie,Lord Mackay of Drumadoon,Lord Reed |
| Neutral Citation | [2010] CSIH 46 |
| Court | Court of Session |
| Published date | 28 May 2010 |
| Year | 2010 |
| Date | 28 May 2010 |
| Docket Number | XA4/10 |
| 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: _______ |
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...
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