Zeynep Ozdemir v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MANCE,MR JUSTICE HOOPER |
| Judgment Date | 03 February 2003 |
| Neutral Citation | [2003] EWCA Civ 167 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 February 2003 |
| Docket Number | C1/2002/1827 |
[2003] EWCA Civ 167
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
THE IMMIGRATION APPEAL TRIBUNAL
(MRS EB GRANT)
Lord Justice Mance
Mr Justice Hooper
C1/2002/1827
MR D JONES (instructed by Irving & Co) appeared on behalf of the Applicant
MR R TAM (instructed by Treasury Solicitor) appeared on behalf of the Respondent
Monday, 3rd February 2003
This is an application for permission to appeal on notice and, as it has developed, for an extension of time for making that application.
The applicant arrived in the United Kingdom clandestinely on 18th July 1999 and claimed asylum as a Turkish Kurd on arrival. Her application was refused by Home Office letter dated 7th June 2001 and a Special Adjudicator, Mrs EB Grant, dismissed an appeal on 31st October 2001 after a hearing the day before. The applicant appealed with leave of the Immigration Appeal Tribunal to the Immigration Appeal Tribunal, which heard the appeal on 20th March 2002 and determined it by decision dated 29th May 2002.
The applicant then says, both in a letter through her current solicitors and in the form of a statement of truth from a partner in those solicitors, that she instructed her previous solicitors to lodge an appeal and was told that they would do so and later had done so, but that in the event she was then informed by the Immigration Appeal Tribunal that no such application for permission to appeal had been lodged with that Tribunal. She sought permission from the Immigration Appeal Tribunal to appeal only on 9th July 2002 after changing solicitors.
The application for permission to appeal acknowledged that it was out of time under the Immigration and Asylum Procedure Rules 2000. That is SI2000/2333, paragraphs 26 and 27.1, which prescribe a 10 day period for such applications.
The application gave, however, extensive reasons, which I have already summarised, for the delay, relating to the assurances said to have been given and the change of solicitors. By a determination dated the 7th, although only sent to the parties on 15th August 2002, the Immigration Appeal Tribunal said that, since the application was out of time, it lacked jurisdiction to consider it and did not therefore either grant or refuse it. However, I note that the letter from the Clerk to the Tribunal, under the cover of which the determination was sent to the applicant and the respondent, said this:
"Enclosed is the Tribunal's determination of the application for leave to appeal to the Court of Appeal (or, in Scotland, the Court of Session). A further application may be made to the Court itself".
From the reference to the Court of Session, it seems likely that that is a standard form.
On 27th August 2002, in other words within 14 days of the receipt of the Immigration Appeal Tribunal's determination, the applicant lodged a renewed application for permission to appeal with this court. When this came before me on paper, I observed that it raised a possible problem, both about the need to apply to this court for an extension of time for seeking permission to appeal and about this court's jurisdiction to grant any such extension or to consider any application for permission to appeal. I drew attention to these potential problems by a note dated 5th December 2002 and directed that the matter be restored for oral argument on notice with a direction that it should be expedited.
The statutory framework within which permission to appeal may be sought and granted is established by the Immigration and Asylum Act 1999. Paragraph 23 of Schedule 4 to that Act provides as follows:
"(1) If the Immigration Appeal Tribunal has made a final determination of an appeal brought under Part IV, any party to the appeal may bring a further appeal to the appropriate appeal court on a question of law material to that determination.
(2) 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.
(3) 'Appropriate appeal court' means —
(a) if the appeal is from the determination of an adjudicator made in Scotland, the Court of Session; and
(b) in any other case, the Court of Appeal".
It follows from paragraph 23(2) that there must on the face of it have been a refusal of leave by the Immigration Appeal Tribunal before any question can arise of seeking permission to appeal from this court. That is because the wording says that an appeal "may be brought only with the leave of the … Tribunal or, if such leave is refused, of the appropriate appeal court".
The statute contains in paragraphs 3 and 4(1) of Schedule 4 the following rule-making power:
"3. The Lord Chancellor may make rules —
(a) for regulating the exercise of the rights of appeal conferred by Part IV;
(b) for prescribing the practice and procedure to be followed on or in connection with appeals under Part IV, including the mode and burden of proof and admissibility of evidence on such an appeal; and
4(1) The rules may include provision —
(a) enabling appeals to be determined without a hearing;
(b) enabling an adjudicator or the Tribunal to allow or dismiss an appeal without considering its merits —
(i) if there has been a failure by one of the parties to comply with a provision of the rules or with a direction given under the rules; or
(ii) if one of the parties has failed to attend at a hearing;
(c) enabling or requiring an adjudicator or the Tribunal to treat an appeal as abandoned in specified circumstances;
(d) enabling the Tribunal, on an appeal from an adjudicator, to remit the appeal to an adjudicator for determination by him in accordance with any directions of the Tribunal, or for further evidence to be obtained with a view to determination by the Tribunal;
(e) as to the circumstances in which —
(i) a decision of an adjudicator may be set aside by an adjudicator; or
(ii) a decision of the Tribunal may be set aside by the Tribunal;
(f) conferring on adjudicators or the Tribunal such ancillary powers as the Lord Chancellor thinks necessary for the purposes of the exercise of their functions;
(g) as to the procedure to be followed on applications to the Tribunal for leave to appeal under paragraph 23".
It is of some interest that paragraph 4(1)(b) contemplates rules enabling the allowing or dismissal of an appeal without consideration of its merits for failure to comply with the rules or to attend at a hearing. That is to say an Adjudicator or the Immigration Appeal Tribunal may make an order disposing of an appeal for essentially procedural reasons. Paragraph 4(1)(g) also specifically provides for rules as to the procedure to be followed on applications for permission to appeal under paragraph 23.
The relevant rule which was actually promulgated in this regard was paragraph 26 of the rules, which reads:
"26. This Part applies to applications to the Tribunal for leave to appeal, on a question of law, to the Court of Appeal or, in Scotland, to the Court of Session, from a final determination of an appeal by the Tribunal.
27(1) An application to the Tribunal for leave to appeal shall be made not later than 10 days after the party seeking to appeal has received written notice of the determination".
The rules contain provisions giving certain powers to extend time for appealing first to the adjudicator and secondly from an adjudicator to the Immigration Appeal Tribunal.
"6(1) Where an appellant makes an appeal within the United Kingdom, notice of appeal shall be given not later than 10 days after the notice of the decision was received.
7(1) Where any notice of appeal is not given within the appropriate time limit, it shall nevertheless be treated for all purposes as having been given within that time limit if the person to whom it was given is satisfied that, because of special circumstances, it is just for the notice to be treated in that way.
(2) An adjudicator shall not extend the time limit for giving notice of appeal unless he is satisfied that because of special circumstances, it is just for the notice to be treated in that way.
18(1) An appeal from the determination of an adjudicator may be made only with the leave of the Tribunal.
(2) An application for leave to appeal shall be made not later than 10 days, or in the case of an application made from outside the United Kingdom, 28 days, after the appellant has received written notice of the determination against which he wishes to appeal.
There is, however, no equivalent provision enabling the Immigration Appeal Tribunal to extend the 10 day period prescribed by paragraph 27(1) for seeking permission to appeal from it to this court. Hence the Immigration Appeal Tribunal's determination in this case that it could not dispose of the application made to it in August 2002 on the merits, but had to decline to consider it.
Mr Tam referred us in his submissions to a number of authorities in which fixed and final time limits of this nature had been considered, particularly R v Immigration Appeal Tribunal ex parte Armstrong [1977] Imm AR 80, Ashrafi v Immigration Appeal Tribunal [1981] Imm AR 34 in this court and R v Immigration Appeal Tribunal ex parte Secretary of State for the Home Department [1990] Imm AR 167. In each case, the time limit was applied and the court held that it had no jurisdiction to require the Immigration Appeal Tribunal to hear the matter out of time. It is right to say that in none of those cases was there any challenge...
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