Erdogan, R (on the application of) v Secretary Of State For Home Department

MR JUSTICE DAVIS: This case raises a question of statutory interpretation. The question can be put in this way. When a person who has claimed asylum is seeking to appeal from a decision of an adjudicator to the Immigration Appeal Tribunal outside the ten-day time limit specified in the relevant rule, is that person disentitled to support under section 95 of the Immigration and Asylum Act 1999? Rather to my surprise, I was told that so far as counsel is aware there is no authority on the point.

The background facts that give rise to this claim are these. The claimant is a Turkish Kurd. Having arrived in the United Kingdom, she claimed asylum on 16 August 2001. The application was refused by the Secretary of State on 9 May 2003. The claimant appealed from that decision to an adjudicator under section 82(1) of the Nationality and Immigration Asylum Act 2002 (the 2002 Act). The Appeal was dismissed by an adjudicator by decision promulgated on 1 October 2003 and served on the claimant shortly thereafter.

It was common ground that by virtue of the provisions of rule 16, taken in conjunction with rule 56 of the Immigration and Asylum Appeals (Procedure) Rules 2003 (the 2003 Rules), the claimant was required to file any application notice for permission to appeal to the Immigration Appeal Tribunal by 17 October 2003.

On 16 October 2003, solicitors acting for the claimant sent such application notice containing her grounds of appeal to the Immigration Appeal Tribunal. The application notice was posted by special delivery, a service which warrants delivery on the following day. In the event industrial action intervened and the application notice was only received by the Immigration Appeal Tribunal on 20 October 2003.

On 29 October 2003, the Tribunal wrote to the claimant's solicitors seeking within seven days an explanation for the reasons for the delay. The solicitors duly sent a letter in reply on 4 November 2003 fully explaining the position and pointing out that the application notice had been sent by special delivery post on 16 October 2003. No further substantive communication was received from the Immigration Appeal Tribunal and the claimant's application for permission to appeal out of time still, as at the end of February 2004, remains to be determined; although her solicitors have in the interim written requesting priority.

While the claimant's asylum appeal had been pending before the adjudicator she had been in receipt of asylum support from the National Asylum Support Service (NASS) on behalf of the Secretary of State. On 28 October 2003, the Secretary of State wrote to the claimant to inform her that she no longer qualified for support under section 95 of the Immigration and Asylum Act 1999 (the 1999 Act) and that support would be discontinued. This was on the basis that her appeal was deemed to have been determined.

On 4 November 2003, the claimant's solicitors wrote to the Secretary of State to say that she had an outstanding application for permission to appeal and remained entitled to NASS support. On 13 November 2003, the Secretary of State responded to the effect that if the out-of-time application for permission to appeal was granted, the claimant should apply again for asylum support. In spite of further representations thereafter, the Secretary of State refused to restore asylum support. The Secretary of State also by letter dated 8 December 2003 refused a fresh application for support under section 95 of the 1999 Act. It was stated among other things in that letter that the claimant was not an asylum-seeker qualifying for support under section 95 of the 1999 Act.

The claimant then, after a letter before action received no response, issued a claim for judicial review on 17 December 2003. Permission was granted on 19 December 2003 and an interim order for the provision of asylum support was made pending the substantive hearing. It may be noted that section 103 of the 1999 Act provides for appeals to an adjudicator against a decision that an applicant does not qualify for support under section 95. But no objection is made in the circumstances of the present case that an inappropriate procedure has been followed in claiming judicial review.

To explain this sequence of events and decisions, it is necessary to go through the relevant statutory provisions. Section 95 of the 1999 Act (which section is headed "Persons for whom support may be provided") empowers the Secretary of State to provide support for asylum seekers. Section 95(1) reads in part as follows:

“The Secretary of State may provide, or arrange for the provision of, support for-

(a)

asylum-seekers, or

(b)

dependants of asylum-seekers,

who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed.”

The phrase "asylum-seeker" is defined by section 94. That section in the relevant respects provides as follows:

“(1)

In this Part-

“adjudicator” has the meaning given in section 102(2);

“asylum-seeker” means a person who is not under 18 and has made a claim for asylum which has been recorded by the Secretary of State but which has not been determined;

“claim for asylum” means a claim that it would be contrary to the United Kingdom’s obligations under the Refugee Convention, for the claimant to be removed from, or required to leave, the United Kingdom;

“dependant”, in relation to an asylum-seeker or a supported person, means a person in the United Kingdom who-

(a)

is his spouse,

(b)

is a child of his, or of his spouse, who is under 18 and dependent on him; or

(c)

falls within such additional category, if any, as may be prescribed;

(3)

For the purposes of this Part, a claim for asylum is determined at the end of such period beginning-

(a)

on the day on which the Secretary of State notifies the claimant of his decision on the claim, or

(b)

if the claimant has appealed against the Secretary of State’s decision, on the day on which the appeal is disposed of, as may be prescribed.

(4)

An appeal is disposed of when it is no longer pending for the purposes of the Immigration Acts...”

By section 167 of the 1999 Act, as amended, it is provided that the phrase "the Immigration Acts" has the meaning given by section 158 of the 2002 Act. Section 158 of the 2002 Act provides that a reference to "the Immigration Acts" includes, among others, the 2002 Act itself.

Section 82(1) of the 2002 Act provides for appeals against an immigration decision to an adjudicator.

Section 101 of the 2002 Act provides in the relevant respects as follows.

“(1)

A party to an appeal to an adjudicator under section 82 or 83 may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator’s determination on a point of law.

(2)

A party to an application to the Tribunal for permission to appeal under subsection (1) may apply to the High Court or, in Scotland, to the Court of Session for a review of the Tribunal’s decision on the ground that the Tribunal made an error of law.”

The crucial section for present purposes is section 104 of the 2002 Act, which is headed "Pending appeal". That reads as follows.

“(1)

An appeal under section 82(1) is pending during the period-

(a)

beginning when it is instituted, and

(b)

ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99).

(2)

An appeal under section 82(1) is not finally determined for the purposes of subsection (1)(b) while a further appeal or an application under section 101(2)-

(a)

has been instituted and is not yet finally determined, withdrawn or abandoned, or

(b)

may be brought (ignoring the possibility of an appeal out of time with permission).

(3)

The remittal of an appeal to an adjudicator under section 102(1)(c) is not a final determination for the purposes of subsection (2) above.

(4)

An appeal under section 82(1) shall be treated as abandoned if the appellant-

(a)

is granted leave to enter or remain in the United Kingdom, or

(b)

leaves the United Kingdom.

(5)

An appeal under section 82(2)(a), (c), (d) or (f) shall be treated as finally determined if a deportation order is made against the appellant.”

Finally in this context reference should be made to the 2003 Rules. Rule 14 defines "appellant" as meaning a party appealing to the Immigration Appeal Tribunal against an adjudicator's determination, and includes a party applying to the Immigration Appeal Tribunal for permission to appeal. Rule 15 in the relevant respects provides as follows.

“(1)

An appeal from the determination of an adjudicator may only be made with the permission of the Tribunal upon an application made in accordance with these Rules.

(2)

Subject to paragraph (3), an application for permission to appeal must be made by filing an application notice with the appellate authority.”

Rule 16 provides as follows.

“(1)

An application notice for permission to appeal must be filed in accordance with rule 15(2) or served in accordance with rule 15(3)(b)-

(a)

if the appellant is in detention under the Immigration Acts when he is served with the adjudicator’s determination, not later than 5 days after he is served with that determination;

(b)

in any other case where the appellant is in the United Kingdom, not later than 10 days after he is served with the adjudicator’s determination; and

(c)

where the appellant is outside the United Kingdom, not later than 28 days after he is served with the adjudicator’s determination.

(2)

The Tribunal may extend the time limits in paragraph (1) if it is satisfied that by reason of special circumstances it would be unjust not to do so.”

Rule 54 contains provision for filing and service of documents. It is sufficient to say that it was common ground before me that these do not have the effect that the notice sent on 16 October 2003 was deemed to be served on or by 17 October, 2003.

The competing submissions can be summarised in this way. Mr Southey on behalf of the claimant submits that the appeal of the claimant is not to be regarded as finally determined and is to be regarded as pending, and the claimant is thus an "asylum-seeker" qualified to receive support under section 95 of the 1999 Act. Miss Anderson on behalf of the Secretary of State submits that, by reason in particular of section 104(2)(b) of the 2002 Act, the appeal is to be regarded as finally determined and therefore the claimant is not an “asylum-seeker" qualified to seek support under section 95 of the 1999 Act.

In support of their respective submissions, Mr Southey and Miss Anderson advanced competing purposive considerations. Mr Southey first observed, citing section 78 of the 2002 Act, that there is to be no removal while an appeal is pending. He says that the Secretary of State does not actually remove persons in circumstances where there is an outstanding application, even if it is made out of time. He goes on to say that it is not to be expected that Parliament would have disentitled an applicant altogether from even the possibility of asylum support pending the decision of the Immigration Appeal Tribunal, even where the application for permission is, for example, only a day or so out of time and even when the delay is through absolutely no fault of the individual applicant. He cited this very case as an illustration, and also gave other examples. He also stressed that section 95 of the 1999 Act confers a discretionary power on the Secretary of State. There is no absolute entitlement of asylum seekers (as defined) to asylum support.

For her part, Miss Anderson rightly cautioned against sympathy for a particular hard case being allowed to permit distortion of the words of the statute. She further said that persons who may seek to apply well out of time for permission to appeal may do so just so that they qualify for support; and it is to be taken that Parliament would wish to discourage the potential for abuse of that kind and to encourage applications to be made within the prescribed time.

There is, as it seems to me, something to be said for each of these viewpoints. I can certainly accept that in this area experience indicates that where there is the possibility for abuse then there will be abuse. On the other hand, as Mr Southey observed, those who are intent on seeking to remain in the country are not likely readily to risk a relatively speedy failure of their claims for failing to satisfy the test of "special circumstances" if they seek to appeal out of time. Moreover an unexplained delay may cause the Secretary of State in any case to scrutinise the circumstances very closely and be wary of exercising the available discretion under section 95.

I did in fact ask Mr Southey when he was emphasising the potential injustice and hardship that could be occasioned to some applicants if the Secretary of State's interpretation were right, if he was seeking to invite me to read down the section by reference to section 3 of the Human Rights Act 1998. But he disclaimed that, saying that that was not necessary.

Miss Anderson's submissions are attractively simple and were persuasively presented. She submits that once the Adjudicator's decision had been promulgated and the time for appealing had past, that appeal was determined. It could only have the status of remaining pending if it fell within section 104(2); but it does not, she submits, because no extension of time, which she submits is a precondition for appealing and is logically distinct from an application for permission, has been granted. Section 104(2)(b) expressly requires, she observes, that in respect of an appeal that may be brought the possibility of an appeal out of time with permission is to be ignored.

On consideration, however, I do not think that that is the right interpretation. Section 104(2)(a) refers to the position where an appeal or application under section 101(2) "has been instituted". (I add that the word "instituted" is apparently not defined in the legislation.) The subsection, therefore, is, as it were, looking to the past. Section 104(2)(b) on the other hand refers to the position where an appeal or application under section 101(2) "may be brought". That is, as it were, that particular subsection looks to the future. Miss Anderson's submission thus involves the proposition that an application for permission to appeal which requires an extension of time, and even though it has been issued and filed with the Immigration Appeal Tribunal, is not an appeal which has been "instituted". As she would say, it may never be just because an extension of time may be refused. Of course it may in the future be "brought" just because an extension of time may thereafter be given; but unless and until that happens section 104(2)(b) requires that that possibility, as she submits, be ignored.

I do not, however, feel able to draw the sharp distinction which Miss Anderson would make between an application for permission for which an extension of time is required and an application for permission for which an extension of time is not required.

Miss Anderson expressly conceded that if the application for permission to appeal was brought within the time specified under Rule 16 then the applicant remained an “asylum-seeker" as defined, qualified to apply for asylum support. But that concession, which I think was rightly made, connotes that the word "appeal" as used in section 104 extends to appeals for which permission is first needed but not yet obtained. It does not apply solely to what might be styled substantive appeals, that is to say, appeals for which permission has already been granted. It also follows, and again as Miss Anderson conceded, that if an applicant who has sought permission to appeal out of time is then granted permission to appeal out of time, then on her own argument that person also then comes within section 104(2)(a).

Mr Southey accepted that from 17 October 2003 the claimant ceased to qualify for asylum support as an asylum-seeker because of the operation of section 104(2)(b). But he submitted that she thereafter became an asylum-seeker, qualified to apply for support, once her application for permission had been received by the Tribunal: and that was so whether or not she needed an extension of time. At that stage, she fell within section 104(2)(a) since a further appeal had, as he submitted, by then been instituted.

I accept that submission. It seems to me on the whole better suited to the wording and structure of the section than Miss Anderson's submission. Moreover it is a conclusion which cannot be criticised as lacking sense or purpose. I would agree that there is something of an oddity in an appeal being deemed "finally determined" and then after all subsequently being treated as reopened. But as against that on Miss Anderson's own approach that result can effectively occur if an extension of time is subsequently granted. Miss Anderson said that that would be because of a supervening event: viz the granting of an extension of time deeming in effect the application for permission to have been made within time. But I do not think that quite answers the point.

It also is to be observed that section 104(2) in terms applies to applications under section 101(2). Although Miss Anderson did not accept it, it seems to me that a challenge (if a point of law could somehow be identified) to a refusal by the Immigration Appeal Tribunal to extend time to apply for permission to appeal would fall within section 101(2) just because the applicant will have been "party to an application to the Tribunal for permission to appeal". Indeed Miss Anderson's suggestion that such a person is confined to the remedy of judicial review, with all the possibility of the delay and expense that that procedure can occasion, would seem quite contrary to the intention behind introducing a speedy and final procedure in this whole context. If that is so, and I think it is so, then it seems odd that, as Miss Anderson's argument would connote, a person is not qualified as an "asylum-seeker" to seek support under section 95 of the 1999 Act while applying to the Tribunal for permission to appeal out of time but then is qualified to seek asylum support when applying for statutory review under section 101(2) in respect of a refusal by the Tribunal to extend time.

For these reasons, in my judgment, the claimant had instituted an appeal and came within section 104(2)(a) of the 2002 Act when her application for permission to appeal was received by the Tribunal; and that result is not precluded by the fact that the claimant required and requires an extension of time. Accordingly at the time that she was requesting continuation of asylum support from the Secretary of State, she was an "asylum-seeker" qualified to apply for such support under section 95 of the 1999 Act.

This conclusion has, I think, some -- albeit limited -- support from two further matters. First, it is clear from the Rules that an application for permission to appeal which is lodged out of time is not regarded as a complete nullity. Second, the current form T/1, the form prescribed under Rule 17, which is headed "Application for Permission to Appeal to Tribunal, United Kingdom" includes not only space for the grounds of appeal to be set out but also in the same form space for grounds for seeking an extension of time to be set out.

It is the current usual practice of the Immigration Appeal Tribunal, as I was told, to consider an application for an extension of time at the same time as the consideration of the substantive permission application itself; understandably, since the merit (or lack of merit) of the advanced grounds of appeal may perhaps sometimes have a bearing on whether or not an extension of time should be granted. Most of the difficulty that in practice seems to arise in cases such as the present is the length of time it takes for such applications to be considered, so great is the Immigration Appeal Tribunal's workload. The application in this case, received on 20 October 2003 by the Immigration Appeal Tribunal has even now, as I have said, not been ruled upon as at the end of February 2004.

Miss Anderson told me that she understood that the question of arranging for special expedited procedures for consideration of applications where an extension of time is being sought in circumstances such as the present is, in the time-honoured phrase, "under consideration". In my view, as this case illustrates, it does indeed merit consideration.

In the result, this claim for judicial review succeeds.