Tepe v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WARD,Lord Justice Carnwath,LORD JUSTICE CARNWATH |
| Judgment Date | 26 November 2004 |
| Neutral Citation | [2004] EWCA Civ 1727 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C4/2004/1287 |
| Date | 26 November 2004 |
[2004] EWCA Civ 1727
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lord Justice Ward
Lord Justice Carnwath
C4/2004/1287
MS CHRISTA FIELDEN (instructed by Messrs Hagan & Co, London N4 1HA) appeared on behalf of the Applicant
MR SAM GRODZINSKI (instructed by Treasury Solicitors London SW1H 9JS) appeared on behalf of the Defendant
(Approved by the Court)
Friday 26 November 2004
Lord Justice Carnwath will give the first judgment.
This is an application for permission for an extension of time to appeal against a decision of the Immigration Appeal Tribunal. It arises in somewhat unusual circumstances to which I shall come in a moment. Before I do that I should say that, like many other of the asylum cases that come before us, it raises disturbing facts about the way this applicant has been treated in Turkey and, like any other asylum case, it needs to be considered with great care. However, it is also important to bear in mind that the administration of the asylum system requires the rules to be carefully observed unless there are genuinely special circumstances which justify a departure.
The applicant is a Turkish citizen of Kurdish background. He claimed asylum in this country, which was in due course refused by a decision of the Immigration Appeal Tribunal notified to the parties on 24 July 2003. That, rather disturbingly—followed a hearing in September 2002, which means there was a delay of some ten months in the promulgation of the decision. In that intervening period there was promulgated an important decision of the Immigration Appeal Tribunal in Hayser [2002] UKIAT 07083. That case lays down certain guidelines for considering the position of Kurdish asylum seekers and the circumstances in which there should be concern about their return to Turkey.
The IAT in their decision did not refer to that case, and it is fair to say that no one appears to have drawn it to their attention. Under the applicable rules an application for permission to appeal to the Court of Appeal against a decision of the IAT had to be made in ten days. That was not done. What happened was that on 26 August 2003, 17 days out of time, the applicant by his then solicitors lodged with the IAT an application for permission to appeal to the Court of Appeal raising the Hayser point.
Within the grounds of appeal was a brief reference to the delay. They took the form of grounds signed by counsel Miss Fielden, who appears before us. Paragraph 12 reads as follows:
"I am given to understand that, after the Tribunal's dismissal of his appeal, the appellant had great difficulty in finding a solicitor to take on his case. After he instructed his present solicitors, further time elapsed on account of the delay of the previous solicitors in forwarding the case papers. By that time counsel, who had already agreed to take on the case, was no longer immediately available. This delayed the processing of the application further. None of these factors are the fault of the appellant. For this reason the Tribunal is asked to consider the appellant's application out of time."
There was no evidence from either the solicitor or the applicant to support that brief statement. Nothing then was heard from the IAT. In March 2004 the solicitors wrote to the IAT asking for information as to the outcome of their application. The clerk to the IAT wrote on 23 March 2004 saying that the Tribunal had no record of receiving the application for PTA and suggesting that it should be re-sent, which was done. On 15 April 2004 the clerk to the IAT wrote to the solicitors saying that the application had been made out of time in that it should have been made by 8 August 2003. The clerk said that a notice to that effect had been sent out. However, that in fact turned out not to be the case. That emerged from a further exchange of correspondence, which led to a letter of 6 May 2004 in which the clerk to the Tribunal apologised for the fact that on investigation it appeared that the relevant letter was not sent out. He said that the file had been placed before the Vice-President who had instructed:
"Even if the application for permission to appeal to the Court of Appeal was submitted by fax on 28/8/03, it was out of time. It was not submitted within 10 working days of the receipt the Tribunal's decision which was issued on 24 July 2003. The Tribunal therefore has no power to extend the time limit."
What then happened appears to be this. On 21 May the solicitors spoke to someone in the Court of Appeal office asking for advice as to what could be done. The Court of Appeal officer suggested that they should write to seek preliminary advice from a deputy master. A letter was accordingly written on 27 May setting out the background and asking for advice. On 16 June a notice of appeal was filed. In the body of that notice there is reference to the need for an extension of time. There is a note which refers to the letter of 27 May to the Civil Appeals office. The writer continues:
"We have subsequently been advised, in a telephone conversation with [a named person] of the Civil Appeals Office… that the Court of Appeal would have power to consider an application for permission to appeal against the IAT, in the circumstances described in our letter, provided that the appellant's notice include an application for extension of time in this section 10."
There is no note of that conversation on the court file. That notice was signed by Mr Hagan, the solicitor, with a statement of his belief in the truth of what he had said.
The substantive written reply from the court service was dated 28 June 2004. That followed a further telephone...
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