Yacoubou v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LATHAM,LORD JUSTICE MAURICE KAY,LORD JUSTICE BROOKE,LORD JUSTICE DYSON,LORD JUSTICE HOOPER |
| Judgment Date | 20 July 2005 |
| Neutral Citation | [2005] EWCA Civ 1051,[2005] EWCA Civ 786 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C5/2005/1089,C5/2005/0959 |
| Date | 20 July 2005 |
[2005] EWCA Civ 1051
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 Brooke
Vice-President of the Court of Appeal, Civil Division
Lord Justice Dyson
Lord Justice Hooper
C5/2005/0959
C5/2005/1089
MR F KHAN (instructed by Immigration Advisory Bureau) appeared on behalf of the Appellant Yacoubou
MISS S NAIK (instructed by Hammersmith & Fulham Community Law) appeared on behalf of the Appellant G
MR P PATEL (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent in each appeal
Crown copyright©
These two applications for permission to appeal to this court and for an extension of time were listed together so that the court could have the opportunity to revisit its earlier decision in Ozdemir v Secretary of State for the Home Department [2003] EWCA Civ 167, within the new statutory regime which includes both the formation of the new Asylum and Immigration Tribunal and also the now quite well-established fast-track procedures for handling a certain category of asylum seeker.
The problem which Mance LJ and Hooper J (as he then was) were facing in Ozdemir was that the application to the IAT for permission to appeal to this court was not lodged within the statutory time limit and the IAT had no power to extend that time. This court was faced with a point of statutory construction as to whether in the language of the statute as it then stood, which for all practical purposes is the same as the current statute, there was a right of access to this court, notwithstanding that no timeous application had been made to the Immigration Appeal Tribunal. This turned on the proper interpretation of paragraph 23(2) of Schedule 4 of the Immigration and Asylum Act 1999, which provided that:
"An appeal under this section may be brought only with the leave of the Immigration Appeal Tribunal or, if such leave is refused, of the appropriate appeal court."
The problem was that given that the IAT had no jurisdiction to grant or refuse leave out of time, how did one then have access to the Court of Appeal if there could not be a situation in which such leave had been refused?
The procedural device which was arrived at by this court in Ozdemir was to hold that it was appropriate, even in those circumstances, for an application to be made to the IAT which it was bound to refuse because it had no power to extend time, and once that refusal had been notified the Court of Appeal then had appropriate jurisdiction to consider whether to grant permission to appeal. But Mance LJ made it clear that in these circumstances time for appealing ran from the original decision, and not from the refusal of permission to appeal within time by the Immigration Appeal Tribunal. That decision has subsequently been applied by this court regularly, e.g. Atef [2004] EWCA Civ 882 and Tepe [2004] EWCA Civ 1727.
These cases were listed today so that the court could reconsider, if it thought appropriate and if it felt able to do so, the validity of the procedure by which an application was made to the IAT at a time at which, by definition, it had no jurisdiction.
No party who appears before the court, including the Secretary of State, have made submissions to us other than that we should follow Ozdemir. If we did not follow Ozdemir, the consequence would be, no doubt, in a number of cases that an application for permission to apply for judicial review in the High Court would have to be made, with a consequent oral hearing in the High Court and perhaps a consequent application for permission to appeal to this court, leading to the cost and delay which has disfigured our system for processing challenges to asylum decisions in the past. In my judgment, this court should regard itself as bound by the decision of the Court of Appeal in Ozdemir.
In Limb v Union Jack Removals Ltd [1998] 1 WLR 1363, I set out the names of a number of cases in this court where the doctrine of precedent, in so far as it related to decisions of different divisions of the Court of Appeal, had been considered. I said that:
"34. From these authorities the following five principles can be derived. (1) Where the court has considered a statute or a rule having the force of a statute its decision stands on the same footing as any other decision on a point of law. (2) A decision of a two-judge Court of Appeal on a substantive appeal (as opposed to an application for leave) has the same authority as a decision of a three-judge or a five-judge Court of Appeal. (3) The doctrine of per incuriam applies only where another division of the court has reached a decision in ignorance or forgetfulness of a decision binding upon it or of an inconsistent statutory provision, and in either case it must be shown that if the court had had this material in mind it must have reached a contrary decision. (4) The doctrine does not extend to a case where, if different arguments had been placed before the court or if different material had been placed before it, it might have reached a different conclusion. (5) Any departure from a previous decision of the court is in principle undesirable and should only be considered if the previous decision is manifestly wrong. Even then it will be necessary to take account of whether the decision purports to be one of general application and whether there is any other way of remedying the error, for example by encouraging an appeal to the House of Lords."
This is not the appropriate occasion on which either to go back into history and consider cases like Langley v North West Water Authority [1991] 1 WLR 697 or Boys v Chaplin [1968] 2 QB 1; or to go forward and to consider such decisions as Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988, or the more recent decision of this court in Cave v Rolf [2001] EWCA Civ 245. Those cases discuss different aspects of an interlocutory decision by a two-judge court, but I am satisfied that for present purposes it is appropriate for us to regard ourselves as bound by the decision in Ozdemir, where a two-judge court made a substantive ruling on a point of law which was fully argued and it would be inappropriate for us do anything other than follow it. Supposing it was on the face of it a binding precedent, there would certainly be no grounds on which we could say that it was manifestly wrong or, if the matter had been revisited, the earlier court must have come to a different conclusion. It is a satisfactory conclusion to come to, particularly as it is one which is fully supported by the Secretary of State because it does set out a workable way in which the Court of Appeal and practitioners can approach these cases where, for whatever reason, an application for permission to appeal was not lodged with the IAT in time.
Under the fast-track procedure, the appropriateness of which considered by this court in the case of the Refugee Legal Centre v Secretary of State for the Home Department [2004] EWCA Civ 1481, only two days are allowed for an application for permission to appeal to the Court of Appeal, thus evidencing Parliament's wish in relation to that category of asylum seeker who is considered appropriate for fast-track treatment for a rapid handling of appeals against an original adjudicator's decision.
In any event, if the application for permission to appeal is not made in time, every day that passes from the time that the AIT is without jurisdiction is likely to weaken the chances of this court being willing to grant an extension of time. Parliament has made clear its wish that applications for permission to appeal to this court should be made promptly. This court will do nothing to thwart the wish of Parliament. Of course there may be those exceptional cases where it would be a manifest injustice, on account of the particular facts, if the court would not be willing to entertain an appeal out of time. But those are likely to be exceptional cases.
I turn then to the facts of the two cases which are before us. The first is the case of Yacoubou. That was a fast-track case. The appellant is a young man from Togo, who came to this country and sought asylum. He was refused by the Secretary of State on 21st March 2005. The adjudicator dismissed his appeal on 31st March 2005. He applied for permission to appeal to the Tribunal on 1st April 2005 and a Vice-President of the Tribunal on 7th April directed that the case should be reconsidered. Mr McGeachy, a Senior Immigration Judge, said he ordered reconsideration because there was merit in the argument that the adjudicator had erred in law when he did not take the country documentation into account and did not adequately explain why, having accepted that the appellant had been detained in the past, he had found that the appellant would not face persecution or treatment contrary to his rights under the ECHR on return.
It was decided to appoint a three-judge tribunal to reconsider the case. The Tribunal found that there had indeed been an error of law of the type that had been identified when permission was granted. The adjudicator was criticised for omitting any reference to the country material in relation to his finding of no risk on return. The AIT then considered the material themselves. They considered an Amnesty International Report, a CIPU assessment and a US...
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...language gave rise were resolved by this court in Ozdemir v SSHD [2003] EWCA Civ 167: see also, more recently, Yacoubou v SSHD [2005] EWCA Civ 1051, a case in which the Home Office supported the decision in Ozdemir. In short, it is now settled that if an application for permission to appeal......
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A (Claimant/Appellant) v Secretary of State for The Home Department
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