Veronique Angele Boum V. Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Macphail |
| Neutral Citation | [2006] CSOH 111 |
| Date | 18 July 2006 |
| Docket Number | P78/05 |
| Court | Court of Session |
| Published date | 19 July 2006 |
Opinion of Lord Macphail
in the petition of
Veronique Angele Boum (AP) [Petitioner] v The Secretary of State for the Home Department [Respondent]
for
Judicial Review of a decision of an Immigration Appeal Adjudicator and for a decision of the Immigration Appeal Tribunal
[Date]
This is an application for the judicial review of two decisions. The first concerns a decision of an Immigration Appeal Adjudicator ('the Adjudicator') refusing an appeal by Ms. Boum against the refusal by the Secretary of State for the Home Department of her application for asylum. The second is a decision by the Immigration Appeal Tribunal refusing an application by Ms. Boum for an extension of the time limit in which to appeal the decision of the Adjudicator.
The petitioner, Ms. Boum, is a national of Cameroon. She entered the United Kingdom in 2002 and claimed asylum on the ground of persecution because of her religious beliefs (she is a Roman Catholic) and her political opinion (she asserted that she was a member of an opposition party, the Social Democratic Front (SDF)). Her application for asylum was refused by the Secretary of State for the Home Department, a decision which was appealed to an Immigration Appeal Adjudicator. The Adjudicator refused the appeal, and accordingly Ms. Boum's application for leave to appeal that decision should have been made not later than 10 days after the she had received written notice of the Adjudicator's determination. In the present case there was a delay in the application to appeal for a period of eight months. The Immigration Appeal Tribunal refused to extend the period of time to appeal the Adjudicator's decision.
At the outset there arose a question as to the competency of the remedies sought by Ms. Boum, and consequently the decisions sought to be reviewed. Counsel for Ms. Boum submitted that what was important was the decision of the Adjudicator. The Secretary of State for the Home Department submitted that the only decision that could relevantly be brought under review was the decision of the Tribunal. This was because the court in its supervisory jurisdiction should do no more that what was necessary to put matters right. Accordingly it should not reduce the determination of the Adjudicator. Lord Macphail agreed with the submissions of The Secretary of State for the Home Department and stated that in his decision he was persuaded by the reasoning and conclusions of the Temporary Judge in the case of Mahmood v. Secretary of State for the Home Department 2005 CSOH 52 [paras. 65-75]. Therefore the only remedy Ms. Boum may seek is the reduction of the decision of the Tribunal, and it is inappropriate to pronounce any order requiring the Tribunal to consider the application.
Accordingly, the decision which falls to be reviewed is the decision of the Tribunal in refusing the application for extension of time for leave to appeal the decision of the Adjudicator. The only decision to be relevantly brought under review in this process is that of the Tribunal.
Summary of Lord Macphail's Opinion in relation to the Tribunal's decision:
· An initial difficulty arose in the assessment of the Tribunal's decision in that the Tribunal applied the wrong rules in consideration of whether to grant the extension of time. Instead of Rule 18(3) of the 2000 Rules, it applied rule 16(2) of the 2003 Rules. Lord Macphail held that the change in wording neither shifted the onus nor imposed a heavier onus on the appellant, and accordingly there was no material difference between the application of the two rules. (para. [11]).
· A party seeking a substantial extension of time in which to appeal must show that the appeal would have a real prospect of success if permission is granted (Secretary of State for the Home Department v. Makke [2005] EWCA Civ 176, [2005] Imm AR 231 at para. 24). As stated, it was immaterial that the Tribunal applied the wrong test, the correct issue was whether it was satisfied that because of the special circumstances it was just for the time limit to be extended. In order to make that decision, the Tribunal had to look at all the material before it, including material which could be said to relate to 'the merits', and reach a view as to what weight, if any should be attached to the material (para. [14]). It was also the Tribunal's duty to apply any readily discernible and obvious point in the petitioner's favour even if it had not been taken on her behalf, but to concern itself 'only with the clear, the obvious, with questions that cry out for an answer'.([para. [13] )
· The Tribunal stated two reasons for its decision to refuse the application. The first of these was delay. Ms. Boum's present solicitors wrote to the Tribunal explaining there had been a change of agency, and that her previous solicitors had failed to apply for leave to appeal to the Tribunal despite her instructions to do so. The Tribunal stated that as there was no evidence that these previous solicitors had ever taken responsibility for failing to act on Ms. Boum's instructions, or even that they had been asked about the matter, for this reason they would refuse the application. Lord Macphail held that this was an erroneous approach to the question, that the explanation given by the present solicitors was straightforward and without inconsistencies. In such circumstances it was not reasonable to look for corroborative material. (paras. [14] to [16])
· The second reason for the Tribunal's decision to refuse the application concerned the merits of the appeal. Lord Macphail held that the Tribunal's approach to the determination of risk of persecution on both religious (paras. [24] to [29]) and political grounds (paras. [30] to [39]) was correct. Moreover, the reasons given by the Adjudicator were sufficient.
· In these circumstances Lord Macphail held that the Tribunal was entitled to reach its conclusion that the grounds of appeal lacked substantive merit, and to find that it was not satisfied that because of special circumstances it was just for the time limit to be extended. (para. [40]).
NOTE
This summary is provided to assist in understanding the Court's decision. It does not form part of the reasons for that decision. The full report of the Court is the only authoritative document.
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| OUTER HOUSE, COURT OF SESSION [2006] CSOH 111 | |
| P78/05 | OPINION OF LORD MACPHAIL in the Petition of VERONIQUE ANGELE BOUM (AP) Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: for Judicial Review of a decision of an Immigration Appeal Adjudicator and for a decision of the Immigration Appeal Tribunal ________________ |
Petitioner: Bovey, Q.C., Blair; Drummond Miller W.S.
Respondent: A.J. Carmichael; Office of the Solicitor to the Advocate General
18 July 2006
Introduction
[1] This is an application for judicial review of two decisions: a decision of an Immigration Appeal Adjudicator refusing an appeal by the petitioner against the refusal by the respondent of her application for asylum; and a decision by the Immigration Appeal Tribunal refusing an application by the petitioner for extension of time for leave to appeal against the decision of the Adjudicator.
Procedure
[2] There arises at the outset a question as to the competency of the remedies sought by the petitioner. These are specified in statement of fact 4 of the petition in the following terms:
"(1) declarator that : -
(i) the determination of the Adjudicator was unlawful et separatim unreasonable;
(ii) the determination of the Tribunal to refuse to extend the time for the application for leave to appeal was unlawful et separatim unreasonable;
(2) production and reduction of the said determinations;
(3) an order requiring the Tribunal to consider the application for late leave to appeal on its substantive merits;
(4) the expenses of the petition; and
(5) such other order as to the Court may seem just and reasonable in the circumstances of the case."
The petitioner's pleas-in-law are as follows:
"(1) The determination of the Immigration Appeal Adjudicator being unlawful et separatim unreasonable et separatim unfair, declarator and reduction should be granted.
(2) Esto the determination of the Immigration Appeal Adjudicator should not be reduced, the determination of the Immigration Appeal Tribunal to refuse to extend the time for leave to appeal being unlawful et separatim unreasonable, declarator and reduction should be granted.
(3) The determination of the Immigration Appeal Tribunal being unlawful et separatim unreasonable they should be ordered to extend the application for time to consider the application for leave to appeal on its merits."
[3] In answer 3 the respondent avers:
". . . Insofar as the present application seeks declarator and reduction in respect of the Adjudicator's determination it is irrelevant. Reference is made to Irzikevikius v Secretary of State for the Home Department, Lord Macfadyen, 14 July 1999. Further and in any event it is not competent or necessary for the Court to grant the order sought at statement of fact 4(3). It is not open to this Court to usurp the function of the Tribunal in determining whether the application for leave to appeal should be allowed to be brought out of time. Reference is made to Mohammed Noor v Secretary of State for the Home Department, Lord Macfadyen, 14 June 2002. If the petitioner succeeds in persuading the Court that the Tribunal has erred and that she is entitled to a remedy in respect of that error, reduction of the Tribunal's determination is the appropriate remedy. . . "
The respondent's pleas-in-law include the following:
"(1) The petitioner's...
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