RG, R (on the application of) v Secretary of State for the Home Department

This is an application for an extension of time of nearly seven months and for permission to appeal from a judgment of Bean J in the Administrative Court on 27^th June 2005 whereby he dismissed an application for judicial review of the refusal by the Secretary of State, in response to letters sent to him between June and November 2004, to admit a fresh claim within the meaning of Rule 353 of the Immigration Rules.

The application has been listed in court before a two-judge court because it raises issues of general application. For this reason the normal restrictions on citing and reporting a judgment of this type are lifted. On the other hand the court has directed that there should be no report of this case which might tend to identify the appellant.

The facts of the matter are fairly straightforward. The appellant was born in 1970 in Chechnya, which is part of the Russian Federation. He claimed asylum when he arrived in this country in October 2002. The Secretary of State refused asylum and gave removal directions two months later. In July 2003 an adjudicator dismissed his appeal on both asylum and human rights grounds. In September 2003 the IAT refused permission to appeal. On 16^th October 2003 Maurice Kay J refused statutory review of that decision.

In short, the adjudicator did not believe the appellant in relation to any material part of the story on which he based his asylum claim. He refused to find that the appellant would face a real risk of serious harm as a Chechen male returned to Chechnya. Although he was satisfied that both Russian solders and Chechen rebels committed human rights abuses in Chechnya, he was not satisfied that the appellant would be subject to such treatment, since there was nothing to distinguish him from any other Chechen male.

The appeal to the IAT was predicated on the basis that the adjudicator had failed to take into account the fact that the appellant would be removed to Russia, where there was a real risk that he would be subject to arbitrary arrest and detention. Particular attention was drawn to the fact that because he had no passport he would have to be returned on a travel document. This would lead to his detention on arrival, and any routine check would identify him as a young Chechen male and therefore a potential security risk. Complaint was made of the fact that the adjudicator had not taken into account relevant extracts from reports by Amnesty, the US State Department and Human Rights Watch.

A Vice-President of the IAT refused permission to appeal because there was no evidence that his travel documents would identify the appellant as someone who had sought asylum in this country. The appellant’s case therefore depended on the proposition that male Chechens in Russia faced persecution or ECHR Article 3 ill-treatment as such, and there was no evidence before the adjudicator to compel such a finding.

Although appeal to the IAT lay on a point of law alone, it appears that the appellant submitted an expert report by Dr Mark Galleotti in support of his application for statutory review. Maurice Kay J contented himself with saying that he could detect no legal error in the refusal of leave to appeal, and that he agreed that such an appeal would not have a real prospect of success.

On 15^th June 2004 the appellant’s solicitors submitted Dr Galleotti’s report, a February 2003 UNHCR report, and a new expert report by Dr Robert Chenciner dated 2^nd April 2004 to the Secretary of State. They invited him to treat the submission in their accompanying letter as a fresh claim for asylum. They maintained that these papers raised a point which could not be said to have been adequately explored in the course of the earlier proceedings.

On 1^st February 2005 the Secretary of State declined to accept these representations (which were bolstered by a number of later letters from the solicitors) as a fresh application. He confirmed this position in a letter dated 22^nd February. On 18^th March the appellant’s solicitors issued judicial review proceedings.

On 17^th May 2005 Wilkie J refused permission to apply for judicial review on paper. He said that the only possible point lay in para 4 of an October 2004 UNHCR report which said that the UNHCR maintained the position set out in the February 2003 paper, namely that for the reasons given in that paper Chechens whose place of permanent residence was the Chechen Republic prior to their seeking asylum abroad should be considered in need of international protection. However, a point that had been made by the IAT and adopted by the Secretary of State undercut the force of that report. This was that the adjudicator had not believed the appellant, and had dismissed his claim on credibility grounds, and there was nothing in the travel documents he would carry that would identify him as a person who had sought asylum in the UK. The automatic need for international protection therefore disappeared, and apart from this narrow point, which was fully dealt with, the rest of the claim was unarguable.

Bean J, in a short judgment, also dismissed the application. He quoted two passages from a recent expert report about the risk that the applicant would be identified as an asylum-seeker at the airport. However, he was not satisfied that the new evidence was significantly different from that which had been before the adjudicator. This was not a case where new and alarming evidence about a severe deterioration in a country was being placed before the Secretary of State.

The appellant was represented before Bean J by experienced counsel who took a note of his judgment. On 30^th June the appellant’s solicitors, who were not at the hearing, received a written opinion from her advising an application to the Court of Appeal. Counsel’s note of the judgment was not, however, attached to this opinion.

Nearly 20 weeks then elapsed before the solicitors received the three-page transcript of the judgment which the Legal Services Commission (“LSC”) required before it would consider an application to enlarge the scope of the funding certificate. We have inquired into the reasons for the delay, and these have revealed defects in the carriage of the matter by the appellant’s solicitors, by the LSC and/or the solicitors who advised on the application, and by the official transcribers. Telephone conversations took place which were not recorded and on which no action was taken. Fax communications were sent and confirmed, but they appear not to have been filed in the correct place so that no action was taken. An important e-mail went astray. Although the time for filing a Notice of Appeal expired on 4^th July, and the LSC made it clear on 5^th July that they would require either a transcript or a legible note of the judgment, a delay of nearly two weeks then occurred. During this time telephone messages and fax messages had elicited no response from the LSC. A further delay of 11 days then elapsed before counsel’s note of the judgment was sent to the LSC (which also went astray), and when the LSC eventually authorised the expenditure on a transcript, a further three weeks elapsed before the solicitors contacted the official transcribers, and another week before they placed a pre-paid order for a transcript on 1^st September. They were now nearly two months out of time for appealing.

The approved transcript was back in the transcribers’ hands by 8^th September, but a further chapter of accidents (in which no action was taken on telephone calls, an e-mail never arrived at its destination, and six weeks went by before any chasing inquiry was made) led to the transcript being received by the solicitors (who had ordered and paid for a “super-expedited service”) on 17^th November, nearly four and a half months out of time. It then took a further two months before LSC funding for the appeal was authorised, following an initial refusal. The notice of appeal was filed on 1^st February 2006.

Administrative delays on this scale are inimical to justice. The solicitors, the LSC and the official transcribers are all aware of the details of this saga, and they must take steps to overhaul their administrative processes so as to ensure, so far as possible, that telephone calls and incoming fax messages are properly logged, that e-mail is not relied on as a 100% dependable means of communication (particularly when time is of the essence) and that solicitors who have the carriage of an urgent appeal have systems in place that will ensure a follow-up if no action is taken by a third party on their request for more than, say, seven days.

As I have said, the delay was not attributable to any untoward delay either by the transcriber who produced the draft transcript within 24 hours or by the judge who approved it so quickly in the first week of September that the official transcribers had it back in their hands in an approved form within a week. If there is any reason for solicitors in such a case to fear that there may be a delay in obtaining a transcript, particularly during a vacation, they can always apply to the Court of Appeal for a direction that the transcribers release the unapproved transcript, which will almost always be all that is necessary for the LSC’s purposes or for the purposes of a judge considering an application for permission to appeal on the papers. But this expedient was not needed in the present case.

So much for the delay and its causes. What is quite clear is that no blame can be attributed to the appellant himself. In YD (Turkey) [2006] EWCA Civ 52 I made it clear at para 25 that delays of more than two months in filing a notice of appeal would only be overlooked in rare and limited cases where the facts justifying such a long extension of time could be strictly proved. At para 41(3) I restated the principle in these terms:

I can see no trace of any injustice in the present case. The appellant’s claim for asylum has been rejected on the facts that were personal to his particular case. What is now in issue is whether he would be safe at the airport of re-entry if he were sent back to Russia. Ms Plimmer, who has argued his case admirably, told us that the Home Office has not in fact sent Chechen males back to Russia for quite a long time, and has not given any indication that it intends to restart a process of forced repatriation. If it does, and if at that time there is still good reason for concern about their safety in the hands of the Russian authorities, then any removal directions can be challenged at that time on the basis of up to date evidence about the situation in Russia, particularly at Moscow airport (see GH v Home Secretary [2005] EWCA Civ 1182 at paras 48 and 52).

Ms Plimmer invited us to embark on a linguistic examination of the wording of Rule 353. I decline to do so. The appellant and his advisers had ample opportunity to raise all the points they wished to raise at the time when his original appeal against the refusal of asylum was being processed through the appellate system. There is no indication that the situation in Russia deteriorated between 2003 and 2004. All that became available was a new expert’s report, which could have been commissioned the previous year, and an October 2004 UNHCR report which restated the position set out in a February 2003 UNHCR report which could have been deployed during the course of the original appellate proceedings.

Two experienced judges of the Administrative Court have considered the papers carefully and I can see no evidence that the conclusion they reached represented a significant injustice such as to justify the grant of a long extension of time for appealing. Indeed, I would say that there is no real prospect of success on this appeal.

I would therefore dismiss these applications.

I agree.