R TATAW v Immigration Appeal Tribunal and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SCHIEMANN,LORD JUSTICE MAY,LORD JUSTICE MANTELL,LORD JUSTICE BROOKE |
| Judgment Date | 18 June 2003 |
| Neutral Citation | [2003] EWCA Civ 36,[2003] EWCA Civ 457,[2003] EWCA Civ 925 |
| Date | 18 June 2003 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C1/2002/1753 |
[2003] EWCA Civ 36
IN THE COURT sUPREME OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(MR JUSTICE PITCHFORD)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Schiemann
C1/2002/1753
The Applicant appeared in person
The Defendant did not attend and was unrepresented
(Approved by the Court)
Friday, 17 January 2002
Before me is an application for permission to appeal a refusal of an application to move for judicial review by Pitchford J. The case is bedevilled with an utterly confusing history which has already involved an application to the High Court which was heard by Elias J and which was granted. However, that in itself was evidently the result of a confusion, and so the grant by Elias J was set aside by Scott Baker J who adjourned the application to be heard by a High Court Judge.
That High Court Judge in due course was Pitchford J. He had in front of him an application to quash the decision of an Immigration Appeal Tribunal to refuse the applicant lady permission to appeal. The application for permission to appeal was refused not by the full tribunal, but by Mr Moulden, Vice President, sitting on his own, and it was refused purely on time grounds, the position being that the adjudicator's determination was promulgated on 22 June 2001, whereas the application for leave to appeal was received by fax on 7 August 2001. That is out of time on the face of it because the relevant time limit is set out in Rule 18(2) of the Immigration and Asylum Appeals (Procedure) Rules 2000, which provides that an application for leave to appeal:
"… shall be made not later than 10 days… after the appellant has received written notice of the determination against which he wishes to appeal."
Essentially the position of Miss Tataw is that she did not receive written notice of the determination against which she wishes to appeal until sometime in late August when a copy was sent to her advisors and they did the relevant calculations and came to the conclusion that she had until 8 August in which to submit her application.
There are two uncertainties in this case. One is in relation to the date when she is deemed to have received the notice of the determination; and the second is in relation to the calculation of time. I have not had the benefit of anybody from the Home Office to provide legal help to the court as to how time is calculated, nor is the position entirely clear as to when the decision was sent, to whom it was sent and when it was received. The position is made the more complicated by the fact that we have nothing from the appellant's solicitors, who do not appear (and I may be doing them an injustice) to be solicitors. Their paper is headed "The Travellers Guide Immigrants Welfare Association", and the letter is signed by a gentleman called Mr Kyei. It is he who, on 20 July 2001, sends to Taylor House the request for the determination.
Now, the rules provide that once that has been received the time limit can be extended by the Tribunal. But the Tribunal appear not to have had a request for an extension and so they have not extended time. The reason for the absence of a request, according to Miss Tataw, is that Mr Kyei rightly or wrongly was satisfied that 8 August was the deadline and therefore there was no need for an extension. The position in relation to timing is, in my judgment, unfortunate, to put it no higher, and I would prefer not to reach a conclusion on it today.
I have looked at the underlying merits of the appeal. The difficulty here is that Miss Tataw was flatly not believed by the adjudicator so far as presently relevant. The position of the Tribunal is set out in Rule 18(7), which says that leave to appeal should be granted only where the Tribunal is satisfied that the appeal would have "a real prospect of success"; or (b) there is "some other compelling reason" why the appeal should be heard. The difficulty is that the Tribunal as such has not indicated whether or not it is satisfied that the appeal would have a real prospect of success. It has not addressed that question. Nor has it addressed the question whether there is some other compelling reason why the appeal should be heard. It would be possible for the Tribunal to hear Miss Tataw give evidence in front of them. Her underlying complaint is, as I understand it, that she was not given a chance to be questioned by the Home Office right at the beginning.
I find the position too uncertain to come to a determination on the matter today. I propose to adjourn it. I am going to ask someone to appear on behalf of the Home Office in order to help the court to come to a conclusion. In these circumstances, although she asks for an additional order, I order that the Immigration authorities should be restrained from deporting her. She claims she has served the Treasury Solicitor with notice of the present application in front of me. If she has, no one has turned up. In those circumstances I think it right that I should make an interim order restraining the Home Secretary, who I think is technically a party to this application if he has indeed been served as she claims, from deporting her to the Cameroon pending the hearing of the adjourned application. I give permission to the Home Secretary to apply to this court to vary that order upon three days' notice to the appellant. I shall adjourn the matter for 28 days. I shall reserve it to myself. One judge will suffice; and I would hope to receive some help on behalf of the Secretary of State when hearing is resumed.
(Application adjourned; no order for costs).
[2003] EWCA Civ 457
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT
(MR JUSTICE PITCHFORD)
QUEEN'S BENCH DIVISION
Lord Justice Schiemann
C1/2002/1753
MISS L BUSCH appeared on behalf of the Applicant on a pro bono basis
MR A ROBB (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Defendant
(Approved by the Crown)
Friday, 14 March 2003
Before the court is an application for permission to appeal an order of Pitchford J refusing permission to move for judicial review to a lady from the Cameroon. She wishes to review the decision of the Immigration Appeal Tribunal to refuse her permission to appeal a decision of an adjudicator in an immigration and human rights case. There is a background which I mention only to put it aside, namely, that Elias J gave permission to move for judicial review but that permission was set aside by Scott Baker J, which is how it came about that Pitchford J was hearing the case.
An argument was placed in front of me by Miss Lisa Busch, suggesting that Scott Baker J was not entitled to set aside that leave as I indicated in the course of the hearing. I reject that argument. It is quite clear to me that leave was given by Elias J under a mistake and that the court has an inherent jurisdiction to set aside the mistake which in this case consisted of Elias J assuming that the Secretary of State was, to all intents and purposes, assenting to permission being given. I turn now to the hearing before Pitchford J.
The factual background to the case is that when this lady appeared before the adjudicator she was disbelieved. She claimed that if she were returned to her home country she was seriously at risk of female genital mutilation. The material now before the court indicates that she was not served with the decision of the adjudicator until sometime after 20 July, albeit in the normal course of events she would have been regarded as having received the determination in late June. She did not appeal until early August, a date which is the correct time if she indeed received the application after 20 July, but is too late if indeed she received the determination in late June. Mr Moulden, a Vice-President of the Tribunal, said this:
"No explanation is given as to why the application was delayed and there has been no request for an extension of time. The only information on the Court file which appears to have any relevance is an application dated 20 July 2001 from the Applicant's representatives asking for a copy of the determination. Even if these representatives had not received the determination it was sent to the Applicant in person on 22nd June 2001."
What happened was that the applicant's representatives when they got the determination sent out a notice of appeal. All would have been fine, had it not been, as Mr Moulden thought, that the applicant in person would have received her copy of the determination at the end of June. That, through no fault of Mr Moulden's, appears not to have been the case.
Miss Busch says he should have guessed that in any event there was a possibility that this was the case, because otherwise why should the applicant's representatives ask for a copy of the determination in late July? The applicant's representatives did not ask for an extension of time because they thought none was needed, because that was the first time as they thought that they had received the determination; and the applicant did not ask for an extension of time because she thought...
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