R SAHSENEM ERDOGAN v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE NEWMAN,LADY JUSTICE ARDEN,LORD JUSTICE TUCKEY |
| Judgment Date | 23 July 2004 |
| Neutral Citation | [2004] EWCA Civ 1087 |
| Docket Number | C2/2004/0565 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 July 2004 |
[2004] EWCA Civ 1087
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEENS BENCH DIVISION
THE ADMINISTRATIVE COURT
(MR JUSTICE DAVIES)
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Tuckey
Lady Justice Arden
Mr Justice Newman
C2/2004/0565
MR H SOUTHEY (instructed by Birnberg Peirce) appeared on behalf of the Appellant
MISS J ANDERSON (instructed by the Treasury Solicitor) appeared on behalf of the Respondent
This appeal against the judgment of Davis J raises a short but important point of interpretation in connection with the powers conferred upon the Secretary of State for the Home Department to make payments of asylum support to "asylum seekers". The power to make such payments is conferred by section 95 of the Immigration and Asylum Act 1999 ("the 1999 Act") .
The respondent claimed asylum on 16th August 2001 and the claim was refused on 9th May 2003. She appealed to an adjudicator but the appeal was dismissed on 1st October 2003. The limitation period for a further appeal to the Immigration Appeal Tribunal ("IAT") expired on 17th October 2003. On 20th October 2003 the respondent lodged an application to the IAT for permission to appeal. On 29th October 2003 the IAT wrote to the respondent informing her that the application was received out of time and that:
"It is likely to be rejected unless adequate reasons for the delay are provided."
The tribunal allowed her "an additional seven days" to give further reasons and stated that:
"In the absence of further reasons, the application will be dealt with by the tribunal as it stands."
The limitation period for a further appeal to the IAT having expired, by letter dated 28th October 2003 the Secretary of State wrote to inform the respondent that her asylum support would end on 6th November 2003. Thereafter, on 11th and 19th November, when she sought to collect her support payments, they were denied.
The reasons for the delay having been lodged, it remained for the IAT to consider the application. In that circumstance the respondent's solicitors wrote to the Secretary of State stating that:
"Ms Erdogan has an outstanding application for permission to appeal to the tribunal. Therefore she continues to be entitled to NASS support."
The Secretary of State refused to reinstate the payments on that ground and, in response to a fresh application for support, rejected that application in December.
An application for judicial review was issued and permission was granted on 19th December 2003 and an interim order for the provision of asylum support was made pending the substantive hearing.
The legislation
Section 95 of the 1999 Act provides as material:
"95(1) The Secretary of State may provide, or arrange for the provision of, support for—
(a) asylum seekers …
(b) …
who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed."
The definition of an asylum seeker for the purposes of section 95 is contained in section 94, which states:
"(1) …
'asylum-seeker' means a person who is not under 18 and has made a claim for asylum which has been recorded by the Secretary of State but which has not been determined;
…
(3) For the purposes of this Part, a claim for asylum is determined at the end of such period beginning—
(a) on the day on which the Secretary of State notifies the claimant of his decision on the claim, or
(b) if the claimant has appealed against the Secretary of State's decision, on the day on which the appeal is disposed of,
as may be prescribed.
(4) An appeal is disposed of when it is no longer pending for the purposes of the Immigration Acts or the Special Immigration Appeals Commission Act 1997."
The Immigration Acts include the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") . (See section 167 of the 1999 Act, as amended, and section 158 of the 2002 Act.) The link between the 1999 Act and the 2002 Act is significant to this case because it means that the power to grant asylum support is tied to a closely defined statutory regime which has been laid down for dealing with immigration and asylum appeals by Part V of the 2002 Act. Section 104 of the 2002 Act provides inter alia that:
"(1) An appeal under section 82(1) is pending during the period-
(a) beginning when it is instituted, and
(b) ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99) .
(2) An appeal under section 82(1) is not finally determined for the purposes of subsection (1) (b) while a further appeal or an application under section 101(2) -
(a) has been instituted and is not yet finally determined, withdrawn or abandoned, or
(b) may be brought (ignoring the possibility of an appeal out of time with permission) ."
Section 101 of the 2002 Act provides:
"(1) A party to an appeal to an adjudicator under section 82 or 83 may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator's determination on a point of law.
(2) A party to an application to the Tribunal for permission to appeal under subsection (1) may apply to the High Court or, in Scotland, to the Court of Session for a review of the Tribunal's decision on the ground that the Tribunal made an error of law."
The Immigration and Asylum Appeals (Procedure) Rules 2003, Statutory Instrument 2003/518 ("the 2003 rules")
Rule 14 defines appellant as meaning a party appealing to the IAT against an adjudicator's determination and includes a party applying to the IAT for permission to appeal. Since a party may only appeal with the permission of the IAT, the extension of the definition to include an application for permission is unsurprising.
Rule 15, as material, provides:
"(1) An appeal from the determination of an adjudicator may only be made with the permission of the Tribunal upon an application made in accordance with these Rules."
The rule is restrictive in its effect. It limits what can be regarded as an appeal to an application "made in accordance with these rules".
Rule 16 of the 2003 Rules provides how and when an application is to be made:
"(1) An application notice for permission to appeal must be filed in accordance with rule 15(2) or served in accordance with rule 15(3) (b) -
(a) if the appellant is in detention under the Immigration Acts when he is served with the adjudicator's determination, not later than 5 days after he is served with that determination;
(b) in any other case where the appellant is in the United Kingdom, not later than 10 days after he is served with the adjudicator's determination; and
(c) where the appellant is outside the United...
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