Tofik, R (on the application of) v Immigration Appeal Tribunal

LORD JUSTICE THORPE: Lord Justice Sedley will give the first judgment.

LORD JUSTICE SEDLEY: This case raises a short but important issue: is the Immigration Appeal Tribunal required to give reasons for refusing to extend the time for applying for leave to appeal from an adjudicator?

The issue has arisen in this way. Mr Tofik, an Iraqi Kurd, sought asylum in this country. His application was refused by the Home Secretary and his appeal to an adjudicator, Mr DN Mallinson, was dismissed in a carefully reasoned decision promulgated on 24 January 2002. His solicitors, Alsters, submitted grounds of appeal to the Immigration Appeal Tribunal. These should have been submitted by 7 February, but they did not go in until 8 March.

By rule 18(3) of the Immigration and Asylum Appeals (Procedure) Rules 2000 the IAT has power to enlarge time for appealing from an adjudicator:

The application and grounds were accompanied by this letter from Alsters dated 8 March 2002:

On advice, Mr Tofik sought permission to apply for judicial review of the decision conveyed by the letter, treating it as a refusal of leave to appeal. His grounds were, in essence, that it appeared from the face of the letter that no consideration had been given to the exercise of the IAT's power to extend time under rule 18(3), when it was apparent from Alsters' letter that the IAT was being invited to do so on grounds which the letter set out. This, however, begs the larger question set out at the beginning of this judgment, for without a duty to give reasons it is rarely possible to deduce anything from their absence.

Collins J refused permission on the papers. He wrote:

On renewal of the application Davis J heard full argument on both sides. In a thorough judgment refusing permission he concluded that there was nothing in the argument that the letter was not a decision of the IAT at all (and the argument has wisely not been renewed on this appeal); that there was no statutory duty and in the circumstances no common law duty to give reasons for not enlarging time; and that the tribunal had been fully entitled to conclude, as it necessarily had done, that there were no special circumstances justifying an enlargement of time here. He added that, albeit without hearing any argument, he had formed the clear view that the adjudicator's decision was in any event not appealable.

In the skeleton argument which persuaded me to grant permission to appeal to this court, Mr de Mello did not base his case principally, as Mr Khan had done before Davis J, on the contention that time should have been enlarged. He bases it on the existence of an obligation to give reasons, and goes on to argue that in their absence relief should be refused only if there was no possibility on any view of the IAT's agreeing to enlarge time. For my part I think this is a correct approach.

Because the matter was of some significance and had already been fully argued on both sides below, I directed pursuant to CPR 52.15(4) that the application for judicial review (which this application became on my grant of permission) should proceed in the Court of Appeal.

The appellant contends first that the duty to give reasons for not enlarging time is a statutory requirement. He derives this contention from rule 17, which introduces the material part of the Procedure Rules and applies the provisions of, inter alia, rule 18 to "applications to the Tribunal for leave to appeal to the Tribunal" as well as to appeals proper. Rule 18(10) provides:

Mr de Mello submits that an application to extend time, if one has to be made, is part of the application for leave to appeal. If the reason for refusing permission to appeal is, or includes, the lateness of the application, and if grounds have been put forward for exercising the power to enlarge time in rule 18(3), then a reasoned refusal of leave must, Mr de Mello submits, include the reasons for not enlarging time.

Against this, it might have been said that the time limit and its disapplication are legally distinct from the grant of leave to appeal, and that the former are simply the gateway through which the latter is reached, so that it is only the latter which carries a statutory obligation to give reasons upon refusal. But Mr Tam, appearing today for the Home Secretary, has accepted with the concurrence of the IAT that it is not so, and that reasons, however concise, must always be given for refusing an application for an extension of time for appealing to the IAT.

I think this concession is rightly made. In the IAT, as in this court, the merits of the proposed appeal may have a bearing - not necessarily a decisive one - on the possibility of enlarging time. Occasionally, for example, leave may be given where there seems to have been a serious denial of justice or a point of wide importance has emerged, despite a poorly excused or explained delay in making the application. In all cases the quality of the explanation for the delay is likely to influence the ultimate grant of leave to appeal.

Beyond these practical considerations, I consider that the proposition that an application for leave to appeal includes any ancillary application for an extension of time is well-founded in legal principle. Once the set time has passed, any application for leave has to be two-tiered, and a refusal of leave has ordinarily to involve a decision on both tiers. In the hopeless case alone, a decision on the merits will suffice: but this, axiomatically, must be accompanied by reasons.

I would accordingly hold that there is under the Procedure Rules an obligation to give reasons for any decision not to enlarge the time for applying.

If this were wrong, however, I would come to exactly the same conclusion at common law. Precisely because time is the gateway to any appeal, the loss of recourse to the IAT for lateness is a serious thing. The exercise of the power to extend time is correspondingly critical for the applicant. It is a matter of judgment, not of discretion, and it should be taken as governed by the same principles as have been set out by this court in English v Emery Reimbold and Strick Ltd [2002] 1 WLR 2409, in particular paragraphs 15 to 21. Without travelling through the body of recent authority on the topic (not all of which was cited to the court in English), one can say with confidence that such a decision cannot lie outside what is now the general obligation of judicial and administrative decision-makers to explain, however succinctly, why they are deciding as they are.

But are reasons required to be given for refusing an unreasoned application? The present case was considered both by Collins J and by Davis J to be such a case. I have quoted Collins J's remarks. Davis J considered that the solicitors' letter was "woefully inadequate" in showing special circumstances. Mr Tam has not sought to adopt the same stance, but in deference to these judicial views, and because the issue may well arise in other cases, it is right to consider the issue.

I have no doubt that if nothing amounting to an excuse or a reason for the delay is given (just as if nothing amounting to a ground of appeal is advanced), the IAT need do no more than say so. Such an answer is transparent and, if wrong, can be readily challenged on judicial review.

But even if it is assumed that this was such a case, the IAT did not give such a response. They simply repeated to Mr Tofik's solicitors what the solicitors had already told the IAT, namely that the application was out of time. The very least they should have said was that no ground for enlarging time had been advanced.

Had the IAT's letter said this, however, it would have been open to challenge, for in my judgment the solicitors' letter did advance brief but perfectly intelligible grounds. They were that there had been two unexcused slips in the solicitors' office (failing to note the appeal deadline and using an out-of-date address for the applicant), and that the applicant should not be penalised for them. The admission was made with candour. If the application was to be rejected, the IAT's letter should have said either that these facts were not accepted, and why; or that they did not in the IAT's view amount to special circumstances within the rule (whether because they were routine errors or because the client must live with his lawyers' mistakes); or that, accepting that there were special circumstances, it was not just to extend the time limit. More than one of these possibilities, it should be observed, raises difficult questions of law.

So whatever reason is given for the refusal of an application for an extension of time, it cannot simply be "Out of time". Such a response would be in place only where a late application for leave to appeal contained no application at all for an extension of time.

In this situation Mr Tam proposes one of two courses: to quash the decision and remit the application to the IAT for determination in accordance with the judgment of this court, or to decide now whether the reasons advanced for lateness amount to special circumstances within the rule, and to dispose of the case accordingly. He does not argue that, even with an enlargement of time, there would be no possibility of leave to appeal being granted on the merits. The IAT is not confined to points of law and exercises a fairly catholic judgment on appealability.

For my part I would not be disposed to take the second of these courses. Deciding an application to extend the time for appealing to the IAT is not a simple matter. If the principal error - overlooking a known deadline - had been made by Mr Tofik acting in person, it could not in my present view have constituted a special circumstance. It would be the very thing against which the time limit is intended to guard. If, by contrast, he had been seriously ill and unable to complete the form, the application would have needed very serious consideration. So here, having put the case in the hands of solicitors, it is argued that he was comparably unable to comply with the time limit.

The law has historically regarded client and solicitor as one, at least to the extent that the latter acts as agent for the former. But in ex parte Mehta [1976] Imm AR 38 this court declined to take this approach in an immigration case where the client would have no worthwhile redress against the solicitor for the latter's error. There the lapse of time was only a week, and the Home Office was partly responsible for it. But the principle is the same: a client is not necessarily fixed with her or his solicitors' errors in seeking to oppose removal from the United Kingdom, at least when the client has been in no way responsible for them. In my judgment there is a real issue here for the IAT to decide.

If the single member accepts that there is at least a tenable case for extending time, he or she will need to consider the potential merits of an appeal. Whether and how the dramatic alteration of the situation in Iraq since the date of the adjudicator's decision may have a legal bearing on Mr Tofik's claim, or on the feasibility of returning him if the claim fails, is not something to which we need to give attention at the present stage.

For these reasons I would hold that the IAT, in simply noting that the application for leave to appeal was out of time, erred in law by failing to give any reasons for its refusal to extend the time limit. I would hold, too, that the grounds advanced for an extension of time were grounds with which it was necessary for the IAT to engage.

I would therefore quash the single member's decision contained in the IAT's letter of 25 April 2002, treating it as a refusal to extend the time for applying for leave to appeal, and would remit Mr Tofik's application to another member of the IAT for determination in accordance with the judgment of this court.

SIR ANTHONY EVANS: I agree.

LORD JUSTICE THORPE: I also agree.