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

J U D G M E N T

Friday, 31st October 2003

1. MR JUSTICE WALL: This case raises a short, but not altogether easy, point under The Immigration and Asylum Appeals (Procedure) Rules 2000, which have now been superseded by The Immigration and Asylum Appeals (Procedure) Rules 2003. The judgment therefore depends very much on the terms of the previous rules.

2. The facts of the case are highly unusual. The claimant was born in Kenya on 30th June 1976, so he is now 27. He arrived in the United Kingdom on 30th December 1999 having avoided immigration controls. He claimed asylum on 12th January 2000. On 14th December 2000 the Home Secretary wrote a letter refusing his application, and on 19th December 2000 the Secretary of State gave directions for his removal. The claimant gave notice of appeal to the adjudicator on 9th January 2001 and his appeal was heard by the adjudicator, Mr Andrew Jordan, on 23rd May 2001.

3. The claimant was represented before the adjudicator by counsel and a solicitor, and it is fair to say that the adjudicator took a very strong view of the claimant's case, finding his account to have been so implausible that a detailed analysis of the background material in the case was unnecessary. The adjudicator took the view that the claimant would not suffer persecution were he to return to Kenya because he had not established the underlying factual matrix upon which his claim had to rest. He therefore failed to satisfy the adjudicator that he had a well-founded fear of persecution for a Convention reason and, equally, the adjudicator dismissed the human rights appeal.

4. I make it quite clear that in deciding this application I am not dealing with or deciding it upon the merits of the applicant's claim. This case turns essentially on the terms of the statutory instrument, the 2000 Rules, to which I will return in just a moment.

5. The decision of the adjudicator was promulgated on 4th June 2001. Under the 2000 Rules the claimant had ten days in which to apply for permission to appeal.

6. There is in the documentation before me a statement from Milanka Jaric of the solicitors who represented the claimant before the adjudicator. That statement says that Milanka Jaric is an administrator in the firm and goes on in these terms:

"I confirm that on 19th June 2001 I prepared the appeal bundle to be sent to the Immigration Appeal Tribunal at Taylor House, Rosebery Avenue in London. The following documents, which I attach to the statement, were placed in the bundle ... [they comprised a fax cover sheet, a notice of appeal comprising three pages, the determination and the grounds of appeal]. The total number of pages came to 14. I confirm that I personally sent the bundle to the IAT on the fax number provided and that, following my general practice, I kept a copy of the fax history report contained at page 13 of the bundle. I confirm that this history report relates to this appeal bundle."

7. For the purposes of this application, I am entirely prepared to accept that that indeed is what happened and that is the evidence. Equally, however, it appears that the prospective application for permission was never logged into the system of the Immigration Appeal Tribunal. There is in the documentation a letter dated 8th September 2003 from Mr Ockleton, the Deputy President of the IAT, which reads:

"I confirm that, so far as appears from our file, no application for leave to appeal was received. The Solicitors Sutovic and Hartigan, who acted for the Claimant at all material times, are aware of the Tribunal's practices and would no doubt have raised the alarm if an application had been sent, but not acknowledged as received."

8. I say that I am content to accept the documents were sent by fax, and that derives not merely from the statement of Milanka Jaric but also from the fax receipt document, which indicates that 14 pages were indeed dispatched at 5.16 in the afternoon of 19th June and that the result was "OK". So the fax was sent but not logged into the system.

9. After that nothing happened. The solicitors do not appear to have chased up the application for permission, and Mr Mullins, who appears for the claimant today, frankly accepted that they put away the file. Thus nothing happened until 29th May this year, when the claimant was detained with a view to being deported.

10. On the same day as he was detained his solicitors sent the Home Office the fax report of the application for permission to appeal and requested that the removal notice be withdrawn on the basis that the claimant had an outstanding application for permission to appeal. By letter dated the following day the Home Secretary declined to take that course, and the result was an urgent application to the out of hours judge, Gibbs J, who stayed the removal directions until 3rd June on the claimant's solicitors undertaking to lodge proceedings for judicial review by 3rd June. That was duly done and on 16th June Blackburne J gave permission for the application to proceed on the basis that:

"The evidence indicated that an application for permission to appeal was made on 19 June 2001. In circumstances which are unexplained nothing seems to have happened on that application despite the passage of almost two years. Unless and until that application is determined and in the absence of evidence showing that no application to appeal was made the claimant demonstrates an arguable case for the relief claimed."

It is, I think, fair to say that Blackburne J had not seen the acknowledgment of service filed by the defendant, which was late.

11. In these circumstances the relief sought on the claimant's behalf is: first, a declaration that the setting of removal directions by the Secretary of State on 30th May was unlawful; secondly, a declaration that the claimant's application for permission to appeal remains undetermined; and, thirdly, for a mandatory order requiring the Immigration Appeal Tribunal to determine the claimant's appeal.

12. It is common ground between counsel that if indeed there is an application for permission to appeal outstanding under Part II of the 1999 Act then the removal directions of 30th May are unlawful. The question therefore becomes: is there indeed an outstanding and unresolved application for permission to appeal? This depends on the rules.

13. The following rules seem to me to be relevant. Firstly, rule 18, which is headed "Leave to appeal". The relevant parts of that rule read:

"18-(1) An appeal from the determination of an adjudicator may be made only with the leave of the Tribunal.

(2) An application for leave to appeal shall be made not later than 10 days ... after the appellant has received written notice of the determination against which he wishes to appeal.

(3) A time limit set out in paragraph (2) may be extended by the Tribunal where it is satisfied that because of special circumstances, it is just for the time limit to be extended.

(4) An application for leave to appeal shall be made by serving upon the Tribunal the appropriate prescribed form [and then the relevant provision for that form and the documentation are set out].

(5) When an application for leave to appeal has been made, the Tribunal shall notify the other parties."

We now can move to rule 46, which is headed "Notices etc":

"46-(1) Any notice or other document required or authorised by these Rules to be sent or given to any person or authority may be delivered or sent by post to an address, or sent by fax to a fax number, specified by the person or authority to whom the notice or document is directed."

Then rule 48, headed "Calculation of time":

"(1) This rule applies to any notice or other document sent, served or given under these rules."

Subrule (2) indicates when documents are deemed to be received in certain circumstances which do not apply in the instant case. Subparagraph (4), which does apply, says that:

"Where a notice of appeal is sent by post or by fax to the address or fax number specified in the notice of decision, it shall be deemed to have been given on the day on which it was received at that address or fax number."

Then subrule (5), which seems to me crucial in this particular case:

"A notice or other document is received by the appellate authority when it is received by any person employed as a clerk by that authority."

14. In these circumstances, Mr Mullins submits that the application for permission was submitted in time within the ten day period, it was submitted lawfully because it was submitted by fax, it arrived at the offices of the IAT, and in these circumstances the Secretary of State was wrong to take no notice or to fail to take account of the fax report sheet; alternatively, he failed to notice or acted unreasonably by failing to accept that the claimant had a pending appeal before the Immigration Appeal Tribunal, and that, accordingly, the attempted removal of the claimant from the country was unlawful.

15. He goes on to submit that the fact that the IAT has no record on its electronic correspondence database or in the relevant file of any application for permission to appeal is neither here nor there, and certainly not the responsibility of the claimant. The application, he submits, has been properly served and accordingly the application for permission to appeal is unresolved. He then makes points in relation to the merits, which I need not deal with. He submits that the fact that nothing has happened for two years is not a factor which seeks to undermine the due process of law; it was not the responsibility of the claimant or those advising him; the fault lies with the IAT, who have mislaid the application. In those circumstances, where something as significant as deportation or removal from the country is concerned, there is a clear public interest in ensuring that the process is properly fulfilled before steps are taken to remove the claimant from the jurisdiction.

16. For the defendant, Miss Anderson relies strongly on the terms of the rules themselves. She submits that the application for permission to appeal has never been received by the IAT under the rules and that there is, accordingly, no application for permission outstanding. She submits that there was an obligation on the claimant's advisers to prosecute the appeal and to make enquiries as to its status. It is not acceptable, she argues, for them to leave the matter for two years in the way that it has been left. No explanation for doing that has been given. Essentially, however, (and this, I think, is her main point) as the rules are drafted the application for permission simply has never been received.

17. At first blush, it might be thought that the argument advanced by Miss Anderson is likely to work an injustice. Notice has been given and it is not the fault of the applicant that the clerk at the IAT has not received it. I was initially attracted by that argument, but, on reflection, do not think it sound, and I have come to the conclusion that I prefer Miss Anderson's submissions. Plainly in a matter as important as asylum it is necessary that the legal process be exhausted before an asylum seeker is removed. If the claimant had an outstanding application for permission, as is common ground, a direction to remove him would be unlawful.

18. Rule 18(1) deals with leave to appeal and the time within which such an application has to be made. That seems to me very straightforward. Ten days are allowed. How is the application made? Rule 46 provides that it may be made by fax. So far, so good. You have to make your application within ten days and you can do so by fax. Rule 48, which is headed "Calculation of time", then defines when the notice of appeal is received by the IAT. Where it is sent by fax, two things have to happen before it is received. The first, self-evidently, is that the fax itself has to arrive, but, crucially, it has to be received by "any person employed as a clerk to that authority". So the notice of application for permission to appeal is not given until it has both arrived on the fax machine and been received by a clerk. In the instant case there is no evidence of the latter. The letter from the Deputy President which I have read out makes that clear, and I have no reason to doubt it. It therefore follows, in my judgment, that the application for permission to appeal was not received by the IAT and that no application for permission to appeal is outstanding.

19. As I indicated, I initially was not attracted to that conclusion because of the potential injustice, but, on examination, it seems to me that my objection loses much of its force.

20. Miss Anderson told me that it is the practice of the IAT to acknowledge receipt of applications for permission. The acknowledgment serves to establish that an appeal has been received and is pending. It is not accordingly, in my judgment, unreasonable in those circumstances to expect any solicitor who has put in an application, as here, at the last minute, to check with the IAT that it has been received, particularly when no acknowledgment has been forthcoming from the IAT. Helpfully, over the short adjournment Miss Anderson has produced a form of acknowledgment in another case which is standard. It makes it clear on the face of the document to the applicant and the respondent: "This is to acknowledge receipt on [date given] of an application for leave to appeal to the Tribunal against the determination of an adjudicator. You will be informed of the result in writing".

21. Miss Anderson also submitted that any bureaucracy which led to administrative delay which was not the fault of the applicant would be readily accommodated under rule 18(3), which allows for the extension of time in special circumstances. She submitted that applicants had a responsibility to prosecute their applications. It would be an abuse of the process if they simply were allowed to sit back and allow time to pass, particularly when, as here, the time which has elapsed is approximately two years. Equally, if the applicants for permission were in person and English was not their first language, rule 18(3) once again was sufficiently broad to accommodate any explicable delay. It was, she submitted, important that appeals and applications for permission should be processed as swiftly and efficiently as possible. The importance of the timescale was emphasised by the ten day time limit and the right to make an application by fax.

22. In my judgment, these submissions are sufficient to dispel any anxiety which I had that the rules might generally lead to injustice and might have led to an injustice in the instant case. I am satisfied that they have not. In any event, Mr Mullins, as I indicated earlier, candidly accepted that the solicitor put away the file and had done nothing more about it. It is common ground that the solicitors in question are experienced in the field, and I agree in these circumstances with Miss Anderson that it is not unreasonable to have expected them to chase up the application for permission and not to wait until the Secretary of State had issued removal directions or was about to issue removal directions before seeking to resurrect the application for permission.

23. In these circumstances, I am satisfied that the application for judicial review of the Secretary of State's decision on 30th May fails and must be dismissed.

24. MR MULLINS: The claimant is subject to a certificate of funding by the Legal Services Commission. May I ask for a detailed assessment?

25. MR JUSTICE WALL: Of course.

26. MISS ANDERSON: Can I ask for the usual order for costs, I now think it is a national lottery order. I am sure your learned associate has the wording of it, but it is costs not to be enforced until further order of the court.

27. MR JUSTICE WALL: Do you have any view about that, Mr Mullins? It seems to me probably academic.

28. MR MULLINS: Indeed. It is academic, my Lord. I would invite the court to make no order, but it is in your Lordship's hands.

29. MR JUSTICE WALL: I think, purely to mark the matter as a matter of form, I ought to make the lottery order that Miss Anderson asks. I think it is, as she recognises, simply an academic exercise.

30. MISS ANDERSON: There is no question of the Secretary of State enforcing his costs.

31. MR JUSTICE WALL: Thank you. I am very grateful to you both.