MJ (Sudan) v Secretary of State for the Home Department

This is an application for an extension of time for appealing against a decision of the Asylum and Immigration Tribunal. On 29 June 2005 the AIT gave permission to appeal against its earlier dismissal of an appeal from a decision of an immigration adjudicator. The adjudicator had rejected the appellant’s asylum and human rights claims on the basis that she did not find him credible. Permission to appeal to this court was given by the AIT on the ground that it was arguable that the adjudicator’s negative credibility assessment was not soundly based.

At the time when the AIT granted permission to appeal, the appellant was represented by a firm of solicitors, Selvarajah & Co of 4 Honeypot Lane, Kingsbury, London NW9. On 15 July 2005 that firm wrote to the appellant saying:

“We are delighted to inform you that on the basis of the grounds of appeal lodged by us the Asylum and Immigration Tribunal have granted permission to appeal. What this means is that the case will now be heard in appeal and you will be notified of the date of the hearing by the tribunal.”

The letter went on to say that because the firm was no longer doing legal aid work in immigration law they would not be able to act for him on the appeal, and that he would need to instruct another solicitor.

The statement that the appellant would be notified of the date of hearing of the appeal was wrong. The decision of the AIT merely gave him permission to appeal. It was for the appellant to lodge an appeal by filing a Notice of Appeal at the Court of Appeal. Under the CPR the time for doing so was 14 days after he was served with written notice of the AIT’s decision. By the time the solicitors wrote to the appellant that time had already passed, but the appellant through no fault of his own believed that, so far as the process of appeal was concerned, there was nothing he had to do at that stage. He appreciated that he would need to find new lawyers to act for him on the appeal, but he understandably did not appreciate that he was under any particular time deadline.

He had difficulty finding lawyers who would act for him, but he was eventually referred to his current representatives, the Brighton Housing Trust, who saw him on 16 April 2006. They wrote to his previous solicitors by recorded delivery on 20 April 2006 asking for a copy of the file. But they received no reply. They sent chasers on 27 June 2006, 26 July 2006 and 6 September 2006 but again received no reply. They managed to obtain some papers from the AIT in September 2006. They then instructed counsel, because they considered that the counsel’s advice would be necessary to obtain public funding. This was granted in January 2007. Counsel settled an appellant’s notice. There was then a period of some weeks’ delay on the part of the case handler for personal reasons. There is an explanation put forward by her in a statement. For my part, I would accept her explanation and apology and say no more about that period of delay.

In the circumstances, applying the principles laid down by this court in the case of BR (Iran) [2007] EWCA Civil 198, it is plain that an extension of time should be granted. The AIT considered that the appeal was arguable. If it is soundly based, it would be manifestly wrong for the appellant’s human rights to be denied because of delay for which he was personally blameless.

It is, however, lamentable that there has been such delay. The prime cause of it was the wrong advice given to the appellant by Servarajar and Co in July 2005. This was compounded by their failure to respond to correspondence from the appellant’s present representatives. I do not know what explanation or mitigation that firm may have. In the circumstances I would propose that a transcript of this judgment be sent to the firm together with copies of the correspondence to which I have referred, so that they may have an opportunity of making representations why the matter should not be referred to the Office for the Supervision of Solicitors. Any representation should be made within 28 days from receipt of the judgment. Unless we receive representations which cause us to decide otherwise, I would propose that the judgment and correspondence be sent to the OSS for its consideration.

I agree.