Khalfi, R (on the application of) v Immigration Appeal Tribunal & Anor

LORD JUSTICE KEENE: There seems to be no appearance by the applicant this morning. I will just check with the associate that as far as we know he has been notified of this morning's hearing.

THE ASSOCIATE: Yes, my Lord.

LORD JUSTICE KEENE: That notice will have contained the usual indication that he should contact the Civil Appeals Office to ascertain the time at which the hearing today was to take place. (Pause)

In this matter the applicant seeks permission to appeal against a decision of Newman J dated 31st March 2003 by which the judge refused a renewed application for permission to apply for judicial review.

Mr Khalfi wishes to judicially review the decision of a special adjudicator promulgated on 8th September 2000 dismissing his asylum appeal. The applicant also needs an extension of time, since Newman J's decision was made on 31st March 2003 and the Appellant's Notice was only filed on 23rd April 2003, over two weeks out of time. That is the position because there is a seven-day time limit on seeking permission to appeal against a refusal of permission to bring judicial review. Mr Khalfi does not seem to have understood that. There is no real explanation proffered on his part in the documents for the delay, save that he seems to believe that he had more than seven days in which to lodge his notice. Nonetheless, I will consider the merits of his application before deciding whether an extension of time should be granted.

The applicant is a citizen of Algeria. According to the record of his interviews, he arrived in the United Kingdom on 4th June 1997 and claimed asylum because of alleged threats by the Armed Islamic Group in Algeria, the GIA. The adjudicator noted that the applicant appeared to have left Algeria in August 1995 and to have remained in France for some 18 months before being removed to Algeria in February 1997. Then he came to the United Kingdom.

While his asylum application was under consideration, he attempted to leave the United Kingdom for France. The adjudicator noted, at paragraph 12 of his determination:

In arriving at that conclusion, the adjudicator was basing himself on what the applicant had said in his interviews because Mr Khalfi did not appear at the hearing, nor was he represented at it. The adjudicator stated that he was satisfied that due notice of the hearing had been sent, and so he proceeded in the absence of Mr Khalfi, under Rule 33(2) and 33(3) of the Asylum Appeals (Procedure) Rules 1996.

That hearing took place on 24th July 2000 and the decision, as I have already indicated, was promulgated on 8th September 2000. It resulted of course from an appeal lodged by Mr Khalfi against the decision of the Secretary of State. That decision of the Secretary of State was in June 1999 and the notice of appeal was dated 14th July 1999.

Nothing seems to have happened after the promulgation of the adjudicator's decision on 8th September 2000 until removal directions were issued in November 2002. Shortly thereafter, on 30th December 2002, the applicant applied for judicial review of the adjudicator's decision. That decision had been made over two years earlier.

The grounds set out in the claim form do not assert that the applicant had not been notified of the hearing before the adjudicator, but took points about the risk of persecution if he were to be returned to Algeria. That application for permission to seek judicial review was rejected on the documents by Henriques J. It was then renewed orally before Newman J, at which point, in March 2003, Mr Khalfi asserted, apparently for the first time, that neither he nor his representative had been informed about the hearing in July 2000.

Now of course the three-month period for judicial review applications is not an absolute limit, but one does require some explanation for the delay in seeking judicial review. Mr Khalfi must have been well aware that he had lodged an appeal to an adjudicator. Allegedly, on his version of events, he never enquired as to what had happened to that appeal or as to when there would be a hearing. Apparently this state of affairs went on from July 1999, when his appeal was lodged, until the removal directions were issued in November 2002, a period of over three and a quarter years. I should also add that I understand that the applicant had a representative acting for him during at least most of this time.

Newman J took the view that no adequate explanation had been offered for the delay. In the Appellant's Notice, Mr Khalfi asserts that he was never notified about the adjudicator's appeal hearing and that it was unreasonable of Newman J to say that he needed some evidence to this effect because "how can one prove they never received a letter?" He asserts that he did not receive a letter.

I am wholly unpersuaded that this appeal has any real chance of success. There is no credible explanation for the supposed lack of curiosity for over three years about the progress of his appeal or the fate of that appeal. One would expect someone in the position of Mr Khalfi to be concerned about what was happening to that appeal and about the status which he had within this country. But, if he is to be believed, he was in no way curious and made no attempt to seek any information about what was happening to the appeal which he had lodged or about any hearing date. I find that frankly impossible to believe. Even now there is no evidence that this applicant would be at risk if returned to Algeria. It seems to me that this is a thoroughly unmeritorious application, and I therefore refuse both it and the extension of time sought.

I observe that the time now has reached almost half past ten and yet there is no sign of Mr Khalfi. Nonetheless, to make doubly sure, I am going to ask the usher just to call the matter outside to make sure that there has been no misunderstanding on Mr Khalfi's part. (Usher left court to call Mr Khalfi)

I am informed by the usher that there is no response to this matter being called yet again. My judgment therefore stands.