Guwen v Secretary of State for Home Department
| Jurisdiction | Scotland |
| Judgment Date | 28 May 2010 |
| Date | 28 May 2010 |
| Court | Court of Session (Inner House) |
Court of Session (Inner House)
Lord Reed, Lord Hardie and Lord Mackay of Drumadoon
Representation
Mr Ian Bryce, Solicitor Advocate, instructed by Drummond Miller, for the Claimant;
Mr Mark Lindsay instructed by the Solicitor to the Advocate General, for the Secretary of State.
Cases referred to:
Hare v GocherELR[1962] 2 QB 641; [1962] 3 WLR 339; [1962] All ER 763
Pacitti Jones v O'Brien[2005] CSIH 56; [2006] SC 616
Pruden v Cunard Ellerman LtdUNK[1993] IRLR 317
Trow v lnd Coope (West Midlands) LtdELR[1967] 2 QB 899; [1967] 3 WLR 633; [1967] 2 All ER 900
Zoan v RouambaWLR[2000] 1 WLR 1509; [2000] 2 All ER 620
Legislation judicially considered:
Nationality, Immigration and Asylum Act 2002, s 103A
Procedure and process reconsideration whether application out of time computation of five day period s 103 A of the Nationality, Immigration and Asylum Act 2002 meaning of beginning with a specified date
The Claimant applied for asylum. The Secretary of State for the Home Department refused the application. The Claimant appealed against that decision under section 82 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act). The Asylum and Immigration Tribunal allowed the appeal on 6 January 2009. It was accepted that the Secretary of State received notice of that decision on 8 January 2009.
On 15 January 2009 the Secretary of State made an application for reconsideration. The Tribunal concluded that the notice of application was not served within the prescribed five day period pursuant to s 103A(3)(c) of the 2002 Act. That provision provided that there was a five day limit to apply for reconsideration beginning with the date on which the applicant was treated as having received notice of the Tribunal's decision. The Secretary of State requested that the Court of Session consider her application for reconsideration. A temporary judge referred to rule 57(1) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and held that the application had been made timeously. An order was made that the case be reconsidered by the Tribunal. The appeal was ultimately dismissed on 7 October 2009.
The appeal to the Inner House of the Court of Session raised a short point of statutory interpretation concerning the computation of time under s 103A(3)(c). It was agreed that 10 and 11 January 2009 were not business days and accordingly the period from 8 to 15 January comprised six days. Whether the application was lodged within the period of five days beginning with 8 January 2009 depended on whether the words beginning with required 8 January to be included in the period or not.
Held, allowing the appeal:
(1) there was a consistent line of authority which established that, where the period within which an act had to be done was expressed to be a period beginning with a specified day, that was to be taken as demonstrating an intention that the specified day must be included in the period: Pacitti Jones v O'BrienSC[2006] SC 616; Pruden v Cunard Ellerman LtdUNK[1993] IRLR 317; Hare v GocherELR[1962] 2 QB 641; Trow v Ind Coope (West Midlands) LtdELR[1967] 2 QB 899; Zoan v RouambaWLR[2000] 1 WLR 1509 considered (paras 8 and 9);
(2) accordingly, the period of five days beginning with 8 January and excluding 10 and 11 January, ended on 14 January; the Secretary of State's application for reconsideration was...
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