YD (Turkey) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke,Lord Justice Moore-Bick,Lord Justice Wilson |
| Judgment Date | 08 February 2006 |
| Neutral Citation | [2006] EWCA Civ 52 |
| Docket Number | Case No: C5/2005/2707 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 February 2006 |
[2006] EWCA Civ 52
Lord Justice Brooke
Vice-President, Court of Appeal (Civil Division)
Lord Justice Moore-Bick and
Lord Justice Wilson
Case No: C5/2005/2707
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
CC 419 22/2002
Royal Courts of Justice
Strand, London, WC2A 2LL
Ramby de Mello and Adrian Berry (instructed by the Immigration Advisory Service) for the Appellant
Philip Coppel (instructed by the Treasury Solicitor) for the Respondent
Index
Paragraph
Part 1.Introductory…………………………………….. 1
Part 2.Is there power to grant a stay of removal directions on an out
of time application for permission to appeal? …………… 5
Part 3.Should an extension of time and permission to appeal be
Granted on the facts of this case? ……………………. 25
Part 4.Conclusions:A Summary…………………………….. 41
Part 5.An Appendix……………………………………… 43
Part 1. Introductory
This application for an extension of time for appealing from a determination of the Immigration Appeal Tribunal ("IAT") , and for permission to appeal, if an extension of time is granted, was listed for hearing before a three-judge division of the court because it raises issues of practice of general application. For this reason, this judgment is released from the normal restrictions on the citation of judgments of this kind.
The facts of the case are relatively straightforward. The appellant is a 35 year- old Turkish Kurd. He arrived in this country on 5 th November 1999 and claimed asylum at the port of entry. On 12 th February 2001 the Secretary of State refused his application and refused him permission to remain in this country. He appealed, and an adjudicator's decision in his favour was later set aside by the IAT. On 13 th January 2004 a new adjudicator allowed his appeal, but on 28 th January 2005 the IAT allowed an appeal by the Secretary of State against that decision. It appears that the chairman delivered the Tribunal's determination orally at the hearing on 5 th November 2004, but it then took over two and a half months for a written version of it to be available in an approved form.
The IAT's determination was deemed to have been served on the appellant on 1 st February 2005. He did not, however, seek permission to appeal to this court from the new Asylum and Immigration Tribunal ("AIT") until 18 th November 2005. After it had told him that it had no jurisdiction to consider an "out of time" application, he filed a notice of appeal at the Civil Appeals Office. By this time he had been taken into administrative detention and removal directions had been set. On 29 th November I made an order staying those directions until after his application for an extension of time and for permission to appeal had been determined.
We are primarily concerned with the question of an extension of time and the merits of the application for permission to appeal. However, it will be convenient to determine first whether the court has any power to grant a stay in these circumstances, and if so, by what procedural mechanism.
Part 2. Is there power to grant a stay of removal directions on an out of time application for permission to appeal?
This was an appeal against an immigration decision (see s 82(1) and (2) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") ) . Section 78 of the 2002 Act provides that where a person's appeal under s 82(1) is pending he may not be removed or required to leave this country in accordance with a provision of the Immigration Acts. For this purpose the word "pending" has the meaning given by s 104 of the Act (see s 78(1) and (2) ) . Section 104 provides, so far as is material, that
"104(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 -…
(d) an application under section 103B or 103E for permission to appeal (other than an application out of time with permission) could be made or is awaiting determination…"
In the present case we are concerned with an application made out of time for permission to appeal under s 103B; it is unnecessary to go into the detail of the transitional arrangements which produce this result. In what follows I will usually refer to the IAT for convenience of treatment, although since April 2005 the AIT has been the relevant tribunal.
It is well known that other elements of this statutory scheme for "out of time" appeals to this court from determinations of the IAT have given rise to difficulties because Parliament gave the IAT no jurisdiction to entertain an application for permission to appeal to this court which was made later than 10 days after the notice of decision was received, and this court could not itself grant permission to appeal unless the IAT "refused" permission. The practical problems to which the statutory 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 to this court is not filed with the IAT during the prescribed 10-day period, this court will nevertheless have jurisdiction to entertain an "out of time" application so long as the appellant has first applied to the IAT and been turned away on the grounds that it no longer has any jurisdiction to grant relief.
In Ozdemir it was decided (at para 41) that in these circumstances the 14-day period for filing the appellant's notice at the Civil Appeals Office should run from the date of the IAT's decision which is under challenge. In Yacoubou (at para 10) I said:
"10. 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."
In the present case, the time for filing an application at the IAT for permission to appeal to this court expired on 15 th February 2005 (for the computation of time see the Immigration and Asylum Appeals (Procedure) Rules 2003, rules 28(1) (b) , 54(5) (a) and 56) . The appeal under s 82(1) of the 2002 Act was then "finally determined" within the meaning of s 104 of the Act and there was no statutory bar to his removal thereafter. The theoretical possibility that he could make an "out of time" application for permission to appeal to this court could not in itself prevent his appeal being treated as having been finally determined (see s 104(2) (d) ) .
The phrase "other than an application out of time with permission" is an obscure one. There can be no doubt that if this court does grant permission to appeal out of time, an appeal under s 103B will then be pending, and s 78 will prohibit the appellant's removal until after the appeal is determined. It appears to me that the phrase probably refers to an unusual situation in which this court has extended time for filing the appellant's notice as a discrete event and is therefore treated as having given permission for the application for permission to appeal to be made. The effect of s 104(2) (d) will then be that even if an extension of time is granted, no appeal will be pending for the purposes of s 78 until such time (if at all) as permission to appeal is in due course granted.
The question then arises whether this court has any power to grant a stay on removal between the time when the "out of time" appellant's notice is filed and the time when the application for permission to appeal is determined, and if so what is the source of that power. In deciding that question it is necessary to refer first to the recent decision of this court in GH v SSHD [2005] EWCA Civ 1182. In that case an adjudicator had dismissed an Iraqi Kurd's appeal on both Refugee Convention and human rights grounds. No removal directions had been given, and the question arose whether the IAT had jurisdiction on the appeal to take into account what might happen to the appellant while he was travelling to a "safe haven" in his own country after his removal from the United Kingdom.
This court held that because no removal directions had been set the question was entirely academic. The "immigration decision" under challenge did not embrace removal directions, and there is now no longer any express provision for an appeal to the AIT against removal directions (compare s 65(1) of the Immigration and Asylum Act 1999 with s 82(1) of the 2002 Act) . It was therefore held that if and when removal directions were given, any challenge to those directions would have to be by way of judicial review (see paras 48, 52 and 53 of the judgment) . The Administrative Court would then have power under CPR 54.10(2) to stay the implementation of removal directions pending its decision on the judicial review application.
12. This would...
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