Tepe v Secretary of State for the Home Department

J U D G M E N T

Friday 26 November 2004

1. LORD JUSTICE WARD: Lord Justice Carnwath will give the first judgment.

2. LORD JUSTICE CARNWATH: This is an application for permission for an extension of time to appeal against a decision of the Immigration Appeal Tribunal. It arises in somewhat unusual circumstances to which I shall come in a moment. Before I do that I should say that, like many other of the asylum cases that come before us, it raises disturbing facts about the way this applicant has been treated in Turkey and, like any other asylum case, it needs to be considered with great care. However, it is also important to bear in mind that the administration of the asylum system requires the rules to be carefully observed unless there are genuinely special circumstances which justify a departure.

3. The applicant is a Turkish citizen of Kurdish background. He claimed asylum in this country, which was in due course refused by a decision of the Immigration Appeal Tribunal notified to the parties on 24 July 2003. That, rather disturbingly - followed a hearing in September 2002, which means there was a delay of some ten months in the promulgation of the decision. In that intervening period there was promulgated an important decision of the Immigration Appeal Tribunal in Hayser[2002] UKIAT 07083. That case lays down certain guidelines for considering the position of Kurdish asylum seekers and the circumstances in which there should be concern about their return to Turkey.

4. The IAT in their decision did not refer to that case, and it is fair to say that no one appears to have drawn it to their attention. Under the applicable rules an application for permission to appeal to the Court of Appeal against a decision of the IAT had to be made in ten days. That was not done. What happened was that on 26 August 2003, 17 days out of time, the applicant by his then solicitors lodged with the IAT an application for permission to appeal to the Court of Appeal raising the Hayser point.

5. Within the grounds of appeal was a brief reference to the delay. They took the form of grounds signed by counsel Miss Fielden, who appears before us. Paragraph 12 reads as follows:

"I am given to understand that, after the Tribunal's dismissal of his appeal, the appellant had great difficulty in finding a solicitor to take on his case. After he instructed his present solicitors, further time elapsed on account of the delay of the previous solicitors in forwarding the case papers. By that time counsel, who had already agreed to take on the case, was no longer immediately available. This delayed the processing of the application further. None of these factors are the fault of the appellant. For this reason the Tribunal is asked to consider the appellant's application out of time."

There was no evidence from either the solicitor or the applicant to support that brief statement. Nothing then was heard from the IAT. In March 2004 the solicitors wrote to the IAT asking for information as to the outcome of their application. The clerk to the IAT wrote on 23 March 2004 saying that the Tribunal had no record of receiving the application for PTA and suggesting that it should be re-sent, which was done. On 15 April 2004 the clerk to the IAT wrote to the solicitors saying that the application had been made out of time in that it should have been made by 8 August 2003. The clerk said that a notice to that effect had been sent out. However, that in fact turned out not to be the case. That emerged from a further exchange of correspondence, which led to a letter of 6 May 2004 in which the clerk to the Tribunal apologised for the fact that on investigation it appeared that the relevant letter was not sent out. He said that the file had been placed before the Vice-President who had instructed:

"Even if the application for permission to appeal to the Court of Appeal was submitted by fax on 28/8/03, it was out of time. It was not submitted within 10 working days of the receipt the Tribunal's decision which was issued on 24 July 2003. The Tribunal therefore has no power to extend the time limit."

6. What then happened appears to be this. On 21 May the solicitors spoke to someone in the Court of Appeal office asking for advice as to what could be done. The Court of Appeal officer suggested that they should write to seek preliminary advice from a deputy master. A letter was accordingly written on 27 May setting out the background and asking for advice. On 16 June a notice of appeal was filed. In the body of that notice there is reference to the need for an extension of time. There is a note which refers to the letter of 27 May to the Civil Appeals office. The writer continues:

"We have subsequently been advised, in a telephone conversation with [a named person] of the Civil Appeals Office... that the Court of Appeal would have power to consider an application for permission to appeal against the IAT, in the circumstances described in our letter, provided that the appellant's notice include an application for extension of time in this section 10."

There is no note of that conversation on the court file. That notice was signed by Mr Hagan, the solicitor, with a statement of his belief in the truth of what he had said.

7. The substantive written reply from the court service was dated 28 June 2004. That followed a further telephone conversation that day. It recorded that the supervising case lawyer had advised that, although there might be an issue about jurisdiction which had been raised in another pending case before the Court of Appeal, he advised the matter should be set down and referred to a member of the court to be dealt with along with the other case. Directions were given for this matter to come to an oral hearing rather than being dealt with on the papers, because of the doubts raised about jurisdiction. In the event, the Treasury Solicitor, who has appeared helpfully by Mr Grodzinski, does not contest the jurisdiction of the court. However, it may be useful to say something briefly about that issue for guidance in further cases.

8. The issue arises from the rules. The matter is complicated by the fact that the rules in this area have changed. Fortunately, however, those differences do not seem to be material and Mr Grodzinski does not suggest that they are. The case in which this issue was considered authoritatively by the Court of Appeal is Ozdemir[2003] EWCA Civ 167. That case was under the Immigration and Asylum Act 1999. The relevant rules were the Immigration and Asylum (Procedure) Rules [2000]. The court was there concerned with the fact that the Tribunal had noticed that an application for permission to appeal from the Tribunal had to be received within ten days. The question was, if that was not complied with, to what extent the Court of Appeal had power to rectify the matter at that stage. Mance LJ, who gave the leading judgment with which Hooper J agreed, accepted that the IAT had no power to extend the time beyond the ten days under those rules. That point is in fact explicit in the rules which govern the present case, which are the Immigration Asylum Appeals Procedure Rules 2003. Rule 28, which deals with time limits, says in terms that the Tribunal may not extend the time limits in the previous paragraphs. However, since that was treated as implicit by Mance LJ in the previous rules, it is not a point of distinction.

9. Against that background, however, this court under CPR 52 does have a power to consider an application to appeal out of time provided there has been a decision of the Immigration Appeal Tribunal refusing permission. Mance LJ made clear that there needs to be some decision of the Tribunal in order to give this court jurisdiction to consider an appeal. But that may be a decision dismissing the application for permission to appeal either on the merits, or because of lack of jurisdiction because of failure to comply with the time limits.

10. Although we are now dealing with a case under different rules, Mr Grodzinski does not suggest the changes make any difference to that basic point. Accordingly, he accepts that we can consider this particular application to extend time on its merits. However, he submits and I would accept, that the power of this court is truly exceptional. Where we have rules laying down a very tight timetable for an application to the Tribunal for permission to appeal to this court, and we have now an express provision in the regulations saying that that cannot be extended by the IAT, we are bound in this court to treat that as a clear indication that these matters need to be dealt with very promptly. We should not allow Ozdemir to become a way of undermining the strict scheme of the regulation except in very special circumstances.

11. It is right to say that in Ozdemir the court did extend the time. There was there evidence in the form of a letter from the solicitor, supplemented by a statement of truth, explaining in great detail what had happened. That was that the decision had been notified to the clients and their previous solicitors at the beginning of June. She had been told that they were going to lodge an appeal, but then apparently on 2 July they had told her that that had not happened. She instructed the new solicitors on the following day. They set out in some detail the vigorous attempts they had made to get relevant material, which led to them lodging the application for permission within four days of being instructed. So one has there very special facts, and clear evidence of the solicitors taking the matter very seriously and treating it with the greatest urgency. One also has evidence there of a genuine misunderstanding on the part of the client, and the whole matter being rectified very quickly.

12. Clearly each of these cases depend on its own facts. I bear in mind that in this court we need to have regard to the check-list of factors which one finds in CPR 3.9. However, the facts of this case are very different from Ozdemir. Unfortunately we have practically no evidential material to go on as to the cause of the original delay. All we have is an indication by counsel of her understanding of the position with very little particularity. Thus the original application for permission was clearly out of time. Indeed it should have been obvious to those making it that it was out of time, had they bothered to look at the Rules. Although Ms Fielden says it was not the worst possible case and it was only 17 days out of time, that is in the context of a strict statutory time limit of ten days. Then one has a period which it can be said is not wholly the applicant's responsibility, save that one has no explanation as to why it took some seven months before the solicitors who had lodged the application for permission took steps to find out what had happened to it. Where there is a question of a matter being out of time, the solicitors need to be diligent to chase it up, to make sure that it has indeed been received. In any event the applicant's solicitors knew by 15 April that the matter had been refused as out of time; that was confirmed at the beginning of May. Yet in spite of that it is not until over a month later, on 14 June, that the application was made to the Court of Appeal.

13. I note that there was some attempt in the meantime to get advice from this court. But it is not the job of the court office to substitute for the parties' lawyers, although it endeavours to help when it can. I also note that, for example although there was apparently a conversation on 21 May where it was suggested sensibly that they write to the deputy master, it took five days before that was actually done, and there is no explanation for that delay. Nor do we have any clear chronology of what precisely happened between that letter being sent on the 27 May and the notice being lodged on 14 June.

14. I accept that in considering these matters it may be material, as indeed it was in Ozdemir, to consider to what extent the problems arise from the party's solicitor rather than the party. But in this case we have no reason to distinguish between the two and we have no possible evidence to justify the delay or excuse for it. We have been taken to the merits of the appeal were permission to be allowed. Miss Fielden frankly accepts that it is not a clear-cut case, but it is one which, in the light of Hayser, would have had a realistically arguable prospect. I am prepared to consider it on that basis. Whoever, it seems to me that where there is an unexplained failure to act promptly and urgently and a long time has passed since the statutory time limit, then it would be quite wrong for this court to exercise its exceptional power to extend time.

15. The last point, which does not arise on the facts of this case, is a concern that Mr Grodzinski has properly raised on the provision relating to determination of an application. The current rule is Rule 30 of the 2003 Rules, which provides that an application for permission to appeal must be determined by a "legally qualified member" of the Tribunal without a hearing. He suggested that there might in some cases be a possible argument that where the decision takes the form of a letter signed by the clerk saying that there is no jurisdiction, that might not be a sufficient trigger because it is not by a legally qualified member of the Tribunal. That does not arise in this case because, as I said, the decision not to accept jurisdiction was in fact confirmed by the Vice-President, who is of course legally qualified. However, I see considerable force in Mr Grodzinski's submission that, having regard to Mance LJ's reasoning in Ozdemir, the mere fact that the decision is not that of a legally qualified member but takes the form of a letter from the clerk would not prevent it being a "decision" for the purpose of triggering the right of appeal.

16. For these reasons I would dismiss this application.

17. LORD JUSTICE WARD: I agree.

(Application dismissed; assessment of publicly funded may I please have the appropriate order.