R (on the application of Khoobiari) v Asylum and Immigration Tribunal
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BURTON |
| Judgment Date | 17 July 2006 |
| Neutral Citation | [2006] EWHC 2660 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 July 2006 |
| Docket Number | CO/6400/2005 |
[2006] EWHC 2660 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
MR JUSTICE BURTON
CO/6400/2005
MR R KHUBBER (instructed by THOMPSON) appeared on behalf of the CLAIMANT
MR A PAYNE (instructed by TREASURY SOLICITORS) appeared on behalf of the DEFENDANT
This has been the application for judicial review by the claimant, Mr Mazdak Khoobiari, which was permitted to proceed by Walker J after initial refusal on the papers by Stanley Burnton J, in relation to the refusal by the Asylum and Immigration Tribunal to extend the time for application for permission to appeal a deportation order made against the claimant.
The circumstances can be best described by going back to the year 2000, when on 28th September 2000 the claimant arrived in the United Kingdom clandestinely from Iran. On 3rd October 2000 he claimed asylum. That asylum claim was refused by the Home Office on 15th January 2001 and the claimant appealed. On 7th June 2001 his appeal was dealt with by the Adjudicator. It appears that neither the claimant nor his solicitors appeared at that hearing, which was dismissed by the Immigration Adjudicator.
An application for permission to appeal to the Immigration Appeal Tribunal was put in against that dismissal. The claimant has said that he had no knowledge of that application for permission to appeal, although, if in fact he had no knowledge of it, then he was, himself, failing to take any steps to investigate what was happening in relation to his asylum position. At any rate that application for permission to appeal to the Immigration
Appeal Tribunal was dismissed on 11th July 2001.
It appears that an application by way of fresh claim for asylum was made on the claimant's behalf, based upon alleged fresh facts. That was rejected by the Home Secretary on 21st March 2002. No explanation has been given by the claimant as to how it came about that those fresh representations were put in on his behalf. If he knew about them, then he presumably also knew that they had been rejected and that he was thereafter remaining in this country unlawfully. If, on the other hand, he did not know about them, and as I have indicated, there was no evidence before me as to whether he did or did not, then, once again, he was taking no steps to clarify his unlawful position and remained in this country notwithstanding.
The next time which becomes relevant is when he was convicted on 13th December 2004, by which time he had been unlawfully in this country for more than 4 years, of both common assault and sexual assault as it was described. I am not clear precisely what offence under the Sexual Offences Act he was convicted of at Isleworth Crown Court in relation to events concerning a former girlfriend, and he was sentenced to 20 months' imprisonment and recommended for deportation. He was serving that sentence in prison and clearly knew that, as there had been a recommendation for deportation, it was
likely that a deportation order would be served. I say that for two reasons. One is that we know that he had advice from the Detention Advisory Service on 10th March 2005, which was a day prior to the service of the deportation order and prior to the date consequently when he would expect, if not deported, to be released, and also in his own supplementary statement to which I shall refer, he says:
"Before my sentence had expired I had told by the Detention Advisory Service to seek legal advice as soon as I received anything from the Home Office. I had also spoken to the prison chaplain, Mr Elliott, prior to my receiving forms about my immigration problems and he had also advised me to wait for something from the Home Office before seeking legal advice."
He was served with a notice of deportation by letter sent on 5th April 2005, which it appears arrived for him and was served upon him in the prison on 12th April 2005. The letter put him on express notice as follows:
"Deadline for appeal. Five business days after you have been served with a notice of decision if you are in detention, or 10 business days after you have been served with a notice of decision if you are not in detention."
He was, of course, in detention and five business days expired on 19th April 2005. In fact he lodged an appeal to the Asylum And Immigration Tribunal on 2nd June 2005, which amounted to 44 days out of time.
The rules, in relevant part read as follows (that is the Asylum
And Immigration Tribunal (Procedure) Rules 2005). Rule 7 relates to time limits for appeal and reads as follows:
"(1) A notice of appeal by a person who is in the UK must be given-
(a) if the person is in detention under the Immigration Acts when he is served with notice of the decision against which he is appealing, not later that 5 days after he has served with that notice; and
(b) in any other case, not later than 10 days after he has served with notice of the decision."
Rule 8 sets out in subparagraph (1) what the notice of appeal must contain:
"(1) The notice of appeal must be in the appropriate prescribed form and must-
(a) state the name and address of the appellant; and (b) state whether the appellant has authorised a representative to act for him in the appeal and, if so, give the representative's name and address; (c) set out the grounds for the appeal;
(d) give reasons in support of those grounds; and (e) so far as reasonably practicable, list any documents which the appellant intends to rely upon as evidence in support of an appeal."
Rule 10 deals with late notice of appeal. In the material part it reads as follows:
"(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
(a) include a statement of the reasons for failing to give the notice within that period; and
(b) be accompanied by any written evidence relied upon in support of those reasons;
(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 by 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.
(3) Where the Tribunal gives notification under paragraph (2), if the person giving notice of appeal contends that-
(a) the notice of appeal was given in time, or (b) there were special circumstances for failing to give 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 the notice of appeal.
(5) Where the notice of appeal was given out of time, the Tribunal may extend time for appealing if satisfied that by reason of special circumstances it would be unjust not to do so.
(6) The Tribunal must decide any issues as to whether a notice of appeal was given in time or whether to extend time for appealing as a preliminary decision without a hearing, and in doing so may only take account of-
(a) the matters stated in the notice of appeal; (b) any evidence filed by the person giving notice of appeal in accordance with paragraph ( 1) or (3); and
(c) any other relevant matters of fact within the knowledge of the Tribunal..
The notice of appeal was lodged 44 days out of time and did expressly include a statement in relation to an application for an extension of time. It says as follows:
"The appellant received the notice of Decision to make a Deportation Order on 12.04.05. However the appellant was unable to lodge his appeal within the time allowed because he did not know how to complete the appeal form, nor was he able to get assistance to help him submit the appeal. lAS
[Immigration Advisory Services] took instructions only on 31.5.2005."
So far as the appeal is concerned, the documents supplied the name of the claimant and his address at Wormwood Scrubs, with his prison number.
With regard to the substance of his claim, it revealed that he had a claim for asylum which had previously been refused. So far as the present claim is concerned, he indicated an intention to rely upon that which it appears he had previously relied upon, namely that he was at risk of being killed by the Iranian authorities for deserting from the Army and refusing to fight, but it put forward what appears to be a fresh claim, not raised in the asylum application in 2000, simply by virtue of it relying upon matters that had occurred subsequently, although no dates, at that stage, were put forward, namely:
"As well as because of his conversion to Christianity from the Muslim faith while in the UK."
The Asylum And Immigration Tribunal considered the application for an extension of time and rejected it by a judgment of 3rd June 2005, given by the single immigration judge. In paragraph 1 it is incorrectly recited that the notice of appeal was served upon the appellant's solicitor on 12th April 2005; in fact it was served, as I have indicated,
directly upon the appellant. The judgment then recites Rule 10(1) (a) and 10(1) (b), which refer to what must be filed with the application for an extension. The succinct judgment then reads as follows:
"3. There has been an explanation. I have taken account of it. The explanation is that the Appellant was aware of the refusal, but was unable to complete the appeal form or obtain advice.
4. Many Appellants are not represented, almost all have language difficulties...
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