Omar v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moses |
| Judgment Date | 07 May 2009 |
| Neutral Citation | [2009] EWCA Civ 383 |
| Docket Number | Case No: C5/2008/2189 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 May 2009 |
[2009] EWCA Civ 383
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
Immigration Judge Coleman
Before: Lord Justice Moses
Lord Justice Hughes and
Lord Justice Sullivan
Case No: C5/2008/2189
IA/07255/2006
Mr Alan Payne (instructed by The Treasury Solicitors) for the Appellant
Mr Alasdair Mackenzie (instructed by The Immigration Advisory Service) for the Respondent
Hearing date: 31 st March, 2009
Lord Justice Moses:
This is an attempt to appeal by the Secretary of State against a second reconsideration by the AIT. The appeal is mounted pursuant to permission granted by Senior Immigration Judge Storey on 9 November 2007. That SIJ Storey had granted permission to appeal escaped the notice of those responsible for ensuring that the appellant's notice was filed at the Court of Appeal. Once the error was observed it was filed on 1 September 2008. Thus the Secretary of State needs permission to extend the time for service of the notice of appeal. Following the favourable decision of SIJ Storey it might be thought that she had substantial grounds for such an extension. The history of this case may suggest otherwise.
Since the end of June 2006 the Secretary of State has attempted to deport Mr Osman Omar on the grounds that it is conducive to the public good to make a deportation order against him, pursuant to s.3(5)(a), the Immigration Act 1971. Mr Omar is a national of Cameroon. It is thought that he entered the United Kingdom clandestinely in March 2004 using a false identity. He had, so he said, a proper Cameroon passport which he had used for travel as far as France. He never sought to regularise his presence in the United Kingdom but remained unlawfully and undetected until he was arrested in March 2005 on a charge of kidnapping. On 19 October 2005 he was served with the Secretary of State's decision to remove him. On 10 March 2006 he was sentenced to 22 months' imprisonment for kidnapping. On 11 July 2006 he was served with notice of the decision to make a deportation order. I should observe at this stage that no reasons were given either then or subsequently other than that in the light of the conviction the Secretary of State deemed it conducive to the public good to make a deportation order.
Mr Omar appealed. The AIT, Immigration Judge Elliman, and a non-legal member, in a decision promulgated on 13 December 2006, allowed Mr Omar's appeal on the grounds that in the light of the factors identified in § 364 of HC 395 (Statement of Changes in Immigration Rules) the Secretary of State should have exercised his discretion differently and that compassionate circumstances outweighed the perceived public interest. The Secretary of State appealed and on 14 May 2007 Immigration Judge Davey decided that there was an error of law in the determination and the matter should be reconsidered. On reconsideration, in a determination promulgated on 18 September 2007, Immigration Judge Coleman determined, now for a second time, that Mr Omar's appeal should be allowed under the Immigration Rules and further that it should be allowed pursuant to Art. 8 of the European Convention on Human Rights.
Again, the Secretary of State appealed and on 9 September 2007 SIJ Storey, as I have already indicated, granted the Secretary of State's application for permission to appeal on three grounds, to which I shall return later. There followed a period of delay during which the fact that SIJ Storey had granted permission to appeal and the fact that that permission had been recorded on what is described as the UK Border Agency “systems” were not noticed until August 2008. Then the pace of the Secretary of State's efforts to protect the public good quickened.
The principles governing an extension of time for filing the notice of appeal were considered by this court in BR(Iran) v SSHD [2007] EWCA Civ 198. I should emphasise that that case concerned a failure to file a notice of appeal in time on the part of legal advisers for an applicant for refugee status. The rule in issue was the same rule as applied to the filing of a notice of appeal on behalf of the Secretary of State. By § 21.7(3) of CPR PD 52, in relation to appeals from the AIT:
“The appellant's notice must be filed at the Court of Appeal within 14 days after the appellant is served with written notice of the decision of the tribunal to grant or refuse permission to appeal.”
In BR (Iran) the court expressed concern as to the application of CPR r 3.9, a checklist formulated in the context of orthodox private litigation (see § 21). The court bore in mind two important features of an appeal from the AIT on behalf of one seeking asylum. Firstly, the normal rule that responsibility for delay due to inaction by the lawyer should be attributed to the client may not be applicable in asylum cases. It would be of no consolation to the person seeking refugee status to be told that once removed he may sue his solicitor (see § 18). Secondly, even though a senior immigration judge had ruled there was a point of law potentially favourable to a claimant, were an extension to be refused the claimant could find himself back in the country where he fears persecution. In those circumstances, the court adopted the following principles:
“i) There should be a presumption that where the AIT has granted permission to appeal to this court the appeal ought to be heard.
(ii) If a procedural fault causes this court to have to consider whether the appeal should proceed, the presumption may be displaced if it can be shown that the decision of the SIJ was plainly wrong, in the sense that it is clear that failure to pursue the appeal would not lead to the United Kingdom being in breach of its international obligations. The court on a preliminary application, such as the present, will have to make that assessment without actually hearing the appeal, but, as the present case shows, the enquiry is likely to come close to being in substance an appeal rather than just an application.
(iii) Length of delay, when caused by legal representatives, should not be relevant.
(iv) Where delay has been caused by the applicant the court is likely to look carefully at the light that that sheds on the credibility of the assertion that the application has a good claim for international protection. At the same time, the court will remind itself that if after that scrutiny such a claim is established, then the claimant is indeed entitled to international protection despite the domestic court's disapproval of his conduct or his way of promoting his case that necessarily follows from the decision of this court in Danian v SSHD [2000] Imm AR 96.”
The Secretary of State contends that the same principles apply. There is a presumption that this court should hear the appeal since a senior immigration judge has already taken the view that the decision of IJ Coleman discloses an error of law.
In order to assess the strength of that submission it is necessary to contrast the position of one seeking refugee status and that of the Secretary of State. The court adopted as a matter of principle the proposition that length of delay, when caused by legal representatives, should not be relevant. But that principle can have no application in relation to the Secretary of State. The rationale for not visiting upon a claimant the errors of his legal representatives has no application in relation to the Secretary of State, represented as she is by lawyers of the highest skill, experience and integrity. Moreover, the consequences of delay in a case such as this can hardly be equated to the risk that if a claimant for asylum is removed without consideration of the merits of his claim he may be persecuted on return. If there has been a delay in pursuing the Secretary of State's application the consequences will be less serious, should the appeal not be considered on the merits. Moreover, it seems to me that the Secretary of State is under an obligation to see that she sets an example in the speedy conclusion of appeals. She must take the final responsibility for delays within those departments responsible for ensuring fair and effective immigration control. Effective immigration control requires a stringent approach to delays caused by those responsible for that control.
This leads me to features of the appeal which do require application of the principles in BR. Under the second principle the court considers whether a refusal to extend time may lead to a breach of the United Kingdom's international obligations. It may, in the case of a claimant's appeal, take the view that there is no real prospect of success, and thus the United Kingdom is unlikely to have been in breach of its international obligations. In the case of an appeal by the Secretary of State, if the merits are not considered, it is difficult to see how the consequence would be a breach of the UK's international obligations. But the fourth principle may also be applicable. It requires the court to consider the impact of delay on the merits of the appeal. It is inherent in the instant appeal that the Secretary of State believes that the continued presence of the applicant is harmful to the public good. In the context of a previous conviction for a serious offence, the Secretary of State has taken the view that it is necessary to deport the convicted person not only because his continued presence presents a risk to the safety of others within the...
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