BO and Others (Extension of time for appealing)
| Jurisdiction | England & Wales |
| Judge | C M G OCKELTON,DEPUTY PRESIDENT |
| Judgment Date | 12 April 2006 |
| Neutral Citation | [2006] UKAIT 35 |
| Court | Asylum and Immigration Tribunal |
| Date | 12 April 2006 |
[2006] UKAIT 35
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Mr C M G Ockelton (Deputy President)
Mr J Bailey (Immigration Judge)
Mr G Peart (Immigration Judge)
BO and Others (Extension of time for appealing) Nigeria
The AIT has no power to extend time for appealing in the absence of a notice of appeal. If a notice of appeal is given out of time, the first task in deciding whether to extend time is to see whether there is an explanation (or a series of explanations) that cover the delay. If there is, it and all other relevant factors, such as the strength of the grounds, the consequences of the decision, the length of the delay and any relevant conduct by the Respondent are to be taken into account in deciding whether “by reason of special circumstances it would be unjust not to extend time”.
In the Asylum and Immigration Tribunal, an appeal against an immigration decision is instituted by giving notice of appeal to the Tribunal. In terms of transparency and independence, this is a great improvement on the system that existed before 4 April 2005. Up to that time, the notice of appeal was served on the Respondent, and it regularly happened that the Respondent did not forward the papers promptly to the Appellate Authority and, as a result, the Appellant might have to wait months or years before his appeal was heard. All that has now changed.
One consequence of the change is the treatment of notices of appeal that are out of time. When notices of appeal were served on the Respondent there were specific provision in the Rules for the Respondent to condone any lateness and it is understood that he often did so. Only in cases where the Respondent refused to treat the notice as given in time was there any need for the Appellate Authorities to reach a judgment on the matter. Under the present system, however, every decision on whether to extend time is a judicial decision: and there are arrangements in place for those decisions to be made by Immigration Judges sitting as “ Duty Judge” at the Tribunal's registry in Loughborough. The purpose of this determination is to give guidance to Duty Judges and information to others on the principles that the Tribunal will employ in deciding whether to extend time for notices of appeal.
The decisions against which appeals can be brought are listed in s82(2) of the 2002 Act. We do not need to set that section out: the decisions include those relating to access to the United Kingdom by non-UK nationals who are abroad and decisions relating to remaining in the United Kingdom by non-UK nationals who are here. Under the provisions of s4 of the 1971 Act and associated legislation, the decision-maker may be the Secretary of State or an Immigration Officer in this country or an Entry Clearance Officer abroad, depending on the nature of the decision.
Section 84(1) of the 2004 Act sets out the grounds on which a person may appeal to the Tribunal. Again, we do not need to set this section out. The possible grounds include allegations that the decision breaches an individual's rights under the Refugee Convention or the European Convention on Human Rights, discriminates against him on racial grounds, is contrary to EU law, is contrary to the Immigration Rules, or is otherwise not in accordance with the law.
Section 106 of the 2002 Act contains the rule-making power, under which the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005/230) are made.
The time for giving notice of appeal is set out in Rule 7 and ranges from five to twenty-eight days after the effective notice of decision. (There are special arrangements for “ fast-track” cases, which we do not consider further in this determination.) Rule 8 sets out the form and contents of the notice of appeal. Amongst other requirements, the notice must include the grounds of appeal and reasons in support of the grounds, and be signed and dated. Rule 9 provides that if a notice of appeal is given against a decision carrying no right of appeal, the Tribunal “ shall not accept the notice of appeal”. Rule 10 is headed “ Late notice of appeal” and is as follows:
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“(1) If a notice of appeal is given outside the applicable time limit, it must include an application for an extension of time for appealing, which must—
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(a) include a statement of the reasons for failing to give the notice within that period; and
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(b) be accompanied by any written evidence relied upon in support of those reasons.
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(2) If a notice of appeal appears to the Tribunal to have been given outside the applicable time limit but does not include an application for an extension of time, unless the Tribunal extends the time for appealing of its own initiative, it must notify the person giving notice of appeal in writing that it proposes to treat the notice of appeal as being out of time.
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(3) Where the Tribunal gives notification under paragraph (2), if the person giving notice of appeal contends that—
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(a) the notice of appeal was given in time, or
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(b) there were special circumstances for failing to give the notice of appeal in time which could not reasonably have been stated in the notice of appeal,
he may file with the Tribunal written evidence in support of that contention.
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(4) Written evidence under paragraph (3) must be filed—
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(a) if the person giving notice of appeal is in the United Kingdom, not later than 3 days; or
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(b) if the person giving notice of appeal is outside the United Kingdom, not later than 10 days,
after notification is given under paragraph (2).
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(5) Where the notice of appeal was given out of time, the Tribunal may extend the time for appealing if satisfied that by reason of special circumstances it would be unjust not to do so.
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(6) The Tribunal must decide any issue as to whether a notice of appeal was given in time, or whether to extend the time for appealing, as a preliminary decision without a hearing, and in doing so may only take account of—
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(a) the matters stated in the notice of appeal;
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(b) any evidence filed by the person giving notice of appeal in accordance with paragraph ( 1) or (3); and
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(c) any other relevant matters of fact within the knowledge of the Tribunal.
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(7) Subject to paragraphs (8) and (9), the Tribunal must serve written notice of any decision under this rule on the parties.
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(8) Where—
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(a) a notice of appeal under section 82 of the 2002 Act which relates in whole or in part to an asylum claim was given out of time;
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(b) the person giving notice of appeal is in the United Kingdom; and
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(c) the Tribunal refuses to extend the time for appealing,
the Tribunal must serve written notice of its decision on the respondent, which must—
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(i) serve the notice of decision on the person giving notice of appeal not later than 28 days after receiving it from the Tribunal; and
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(ii) as soon as is practicable after serving the notice of decision, notify the Tribunal on what date and by what means it was served.
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(9) Where paragraph (8) applies, if the respondent does not give the Tribunal notification under sub-paragraph (ii) within 29 days after the Tribunal serves the notice of decision on it, the Tribunal must serve the notice of decision on the person giving notice of appeal as soon as reasonably practicable thereafter.”
We do not need to set out any other Rules. The provisions in Rule 10(8) and (9) do not require further treatment here: they are part of a scheme running through the whole of the Rules relating to the service of decisions. We draw attention to Rule 10(6). The effect of requiring the decision to be taken “ as a preliminary decision” is twofold. For the purposes of the Rules, the decision is not a “ determination” as defined in Rule 2; and the procedure for reconsideration introduced by s103A ff of the 2002 Act is not, by s103A(7)(a), available in the case of a preliminary decision. Thus, although the decision has to be taken without a hearing and on limited material, it is, so far as the Tribunal is concerned, final and can be revisited only by way of Judicial Review.
In the light of the requirements of Rule 10(6), it is not possible for the Tribunal to hear oral argument on this question or to put points to the parties. In making this determination, however, we have endeavoured to take account of those matters which our experience shows are likely to recur. There is no authority directly in point, but there are recent decisions on similar issues in R (Tofik) v IAT [2003] EWCA Civ 1138, MN and others* [2004] UKIAT 00182, and AK and others* [2004] UKIAT 00201, all of which we have considered.
No doubt it goes without saying, but we nevertheless emphasise that the Immigration Judge's first task must be to see whether the appeal was in fact in time. If it was, no question of extension of time arises. It may be that a member of the Tribunal staff, or even the appellant, thought that the appeal was out of time: the Immigration Judge needs to check the calculation.
It will be seen that Rule 10 envisages three possibilities. There may be an application to extend time, properly supported, made at the beginning of the process: Rule 10(1). There may be no application, but the Tribunal may, acting within the confines of Rule 10(5) and (6), nevertheless extend time “ of its own initiative”: Rule 10(2). Or there may be a statement of special circumstances, properly supported, made following the notification envisaged in Rule 10(2): Rule 10(3)-(4).
It will be seen also that Rule 10 does not envisage an application for the extension of time alone. If a notice...
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