Ozdemir v Secretary of State for the Home Department [2003] EWCA Civ 167

Case No C1/2002/1827[2003] EWCA Civ 167
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
THE IMMIGRATION APPEAL TRIBUNAL
(MRS EB GRANT)
Venue Royal Courts of JusticeDate Monday, 3rd February 2003
Strand
London, WC2
B E F O R E:
LORD JUSTICE MANCE
MR JUSTICE HOOPER
Between
ZEYNEP OZDEMIRApplicant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR D JONES (instructed by Irving & Co) appeared for ApplicantMR R TAM (instructed by Treasury Solicitor) appeared for Respondent
J U D G M E N TMonday, 3rd February 2003

LORD JUSTICE MANCE:

This

[1]is an application for permission to appeal on notice and, as it has developed, for an extension of time for making that application.[2]The applicant arrived in the United Kingdom clandestinely on 18th July 1999 and claimed asylum as a Turkish Kurd on arrival. Her application was refused by Home Office letter dated 7th June 2001 and a Special Adjudicator, Mrs EB Grant, dismissed an appeal on 31st October 2001 after a hearing the day before. The applicant appealed with leave of the Immigration Appeal Tribunal to the Immigration Appeal Tribunal, which heard the appeal on 20th March 2002 and determined it by decision dated 29th May 2002.[3]The applicant then says, both in a letter through her current solicitors and in the form of a statement of truth from a partner in those solicitors, that she instructed her previous solicitors to lodge an appeal and was told that they would do so and later had done so, but that in the event she was then informed by the Immigration Appeal Tribunal that no such application for permission to appeal had been lodged with that Tribunal. She sought permission from the Immigration Appeal Tribunal to appeal only on 9th July 2002 after changing solicitors.[4]The application for permission to appeal acknowledged that it was out of time under the Immigration and Asylum Procedure Rules 2000. That is SI2000/2333, paragraphs 26 and 27.1, which prescribe a 10 day period for such applications.[5]The application gave, however, extensive reasons, which I have already summarised, for the delay, relating to the assurances said to have been given and the change of solicitors. By a determination dated the 7th, although only sent to the parties on 15th August 2002, the Immigration Appeal Tribunal said that, since the application was out of time, it lacked jurisdiction to consider it and did not therefore either grant or refuse it. However, I note that the letter from the Clerk to the Tribunal, under the cover of which the determination was sent to the applicant and the respondent, said this:
"Enclosed is the Tribunal's determination of the application for leave to appeal to the Court of Appeal (or, in Scotland, the Court of Session). A further application may be made to the Court itself"
. From the reference to the Court of Session, it seems likely that that is a standard form.[6]On 27th August 2002, in other words within 14 days of the receipt of the Immigration Appeal Tribunal's determination, the applicant lodged a renewed application for permission to appeal with this court. When this came before me on paper, I observed that it raised a possible problem, both about the need to apply to this court for an extension of time for seeking permission to appeal and about this court's jurisdiction to grant any such extension or to consider any application for permission to appeal. I drew attention to these potential problems by a note dated 5th December 2002 and directed that the matter be restored for oral argument on notice with a direction that it should be expedited.[7]The statutory framework within which permission to appeal may be sought and granted is established by the Immigration and Asylum Act 1999. Paragraph 23 of Schedule 4 to that Act provides as follows: "(1) If the Immigration Appeal Tribunal has made a final determination of an appeal brought under Part IV, any party to the appeal may bring a further appeal to the appropriate appeal court on a question of law material to that determination. (2) An appeal under this section may be brought only with the leave of the Immigration Appeal Tribunal or, if such leave is refused, of the appropriate appeal court. (3) 'Appropriate appeal court' means --(a) if the appeal is from the determination of an adjudicator made in Scotland, the Court of Session; and(b) in any other case, the Court of Appeal".[8]It follows from paragraph 23(2) that there must on the face of it have been a refusal of leave by the Immigration Appeal Tribunal before any question can arise of seeking permission to appeal from this court. That is because the wording says that an appeal "may be brought only with the leave of the . . . Tribunal or, if such leave is refused, of the appropriate appeal court".[9]The statute contains in paragraphs 3 and 4(1) of Schedule 4 the following rule-making power: "3. The Lord Chancellor may make rules --(a) for regulating the exercise of the rights of appeal conferred by Part IV;(b) for prescribing the practice and procedure to be followed on or in connection with appeals under Part IV, including the mode and burden of proof and admissibility of evidence on such an appeal; and 4(1) The rules may include provision -- (a) enabling appeals to be determined without a hearing; (b) enabling an adjudicator or the Tribunal to allow or dismiss an appeal without considering its merits -- (i) if there has been a failure by one of the parties to comply with a provision of the rules or with a direction given under the rules; or (ii) if one of the parties has failed to attend at a hearing;(c) enabling or requiring an adjudicator or the Tribunal to treat an appeal as abandoned in specified circumstances;(d) enabling the Tribunal, on an appeal from an adjudicator, to remit the appeal to an adjudicator for determination by him in accordance with any directions of the Tribunal, or for further evidence to be obtained with a view to determination by the Tribunal;(e) as to the circumstances in which -- (i) a decision of an adjudicator may be set aside by an adjudicator; or (ii) a decision of the Tribunal may be set aside by the Tribunal;(f) conferring on adjudicators or the Tribunal such ancillary powers as the Lord Chancellor thinks necessary for the purposes of the exercise of their functions;(g) as to the procedure to be followed on applications to the Tribunal for leave to appeal under paragraph 23".[10]It is of some interest that paragraph 4(1)(b) contemplates rules enabling the allowing or dismissal of an appeal without consideration of its merits for failure to comply with the rules or to attend at a hearing. That is to say an Adjudicator or the Immigration Appeal Tribunal may make an order disposing of an appeal for essentially procedural reasons. Paragraph 4(1)(g) also specifically provides for rules as to the procedure to be followed on applications for permission to appeal under paragraph 23.[11]The relevant rule which was actually promulgated in this regard was paragraph 26 of the rules, which reads: "26. This Part applies to applications to the Tribunal for leave to appeal, on a question of law, to the Court of Appeal or, in Scotland, to the Court of Session, from a final determination of an appeal by the Tribunal. 27(1) An application to the Tribunal for leave to appeal shall be made not later than 10 days after the party seeking to appeal has received written notice of the determination".[12]The rules contain provisions giving certain powers to extend time for appealing first to the adjudicator and secondly from an adjudicator to the Immigration Appeal Tribunal. "6(1) Where an appellant makes an appeal within the United Kingdom, notice of appeal shall be given not later than 10 days after the notice of the decision was received. 7(1) Where any notice of appeal is not given within the appropriate time limit, it shall nevertheless be treated for all purposes as having been given within that time limit if the person to whom it was given is satisfied that, because of special circumstances, it is just for the notice to be treated in that way. (2) An adjudicator shall not extend the time limit for giving notice of appeal unless he is satisfied that because of special circumstances, it is just for the notice to be treated in that way. 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, or in the case of an application made from outside the United Kingdom, 28 days, after the appellant has received written notice of the determination against which he wishes to appeal.[13]There is, however, no equivalent provision enabling the Immigration Appeal Tribunal to extend the 10 day period prescribed by paragraph 27(1) for seeking permission to appeal from it to this court. Hence the Immigration Appeal Tribunal's determination in this case that it could not dispose of the application made to it in August 2002 on the merits, but had to decline to consider it.[14]Mr Tam referred us in his submissions to a number of authorities in which fixed and final time limits of this nature had been considered, particularly R v Immigration Appeal Tribunal ex parte Armstrong [1977] Imm AR 80, Ashrafi v Immigration Appeal Tribunal [1981] Imm AR 34 in this court and R v Immigration Appeal Tribunal ex parte Secretary of State for the Home Department [1990] Imm AR 167. In each case, the time limit was applied and the court held that it had no jurisdiction to require the Immigration Appeal Tribunal to hear the matter out of time. It is right to say that in none of those cases was there any challenge to the vires of the relevant rule introducing such a time limit.[15]Mr Tam submits that those cases support the proposition that such a time limit, final and conclusive, is well recognised and that there are powerful policy considerations in favour of finality and a swift disposal of cases such as the present.[16]So he submits that, in the present case, the end of the matter as far as this court is concerned is that the Immigration Tribunal was unable to deal with the application made to it because it lacked jurisdiction to grant leave after the expiry of the relevant 10 day period. Schedule 4, paragraph 23(2) only allows an appeal with this court's leave if such leave has been refused by the Immigration Appeal Tribunal. Here, he submits, it was neither refused nor granted. The Immigration Appeal Tribunal simply lacked jurisdiction to consider it. Its determination to that effect did not even necessitate judicial consideration. The application could have been disposed of by the Immigration Appeal Tribunal administratively. In that connection he refers us to two authorities, namely Jolly v Jay & Jay [2002] EWCA Civ 277, particularly at paragraph 19, and Slot & Slot v Isaac [2002] EWCA Civ 481, particularly the last paragraph of Brooke LJ's judgment, paragraph 17.[17]Both those cases were in the context of rules which specifically provided that there could be no application for permission to appeal against a decision of a lower court refusing permission to appeal to it. The issue in the present case is whether there is any equivalent provision implicit or express in paragraph 23(2), which precludes an application to this court in circumstances where the Immigration Appeal Tribunal was unable, because of the lapse of the relevant time limit, to consider an application to it.[18]In case the Secretary of State's position might be thought to lead to too draconian a result in certain situations, Mr Tam invited us to consider the possibility that there could, after the 10 day period, be an application for judicial review of a decision of the Immigration Appeal Tribunal if that decision appeared to involve some error of law. In other words, although the prescribed route for appeal in respect of questions of law material to a determination of the Immigration Appeal Tribunal was not open under Schedule 4, paragraph 23, nonetheless there was the possibility of fresh proceedings involving an application for permission to review judicially the decision of the Immigration Appeal Tribunal on a point of law and, if such permission was given, of a hearing at which it might be set aside and the matter then remitted to the Immigration Appeal Tribunal for further consideration. He relied in this connection upon the reference to rare or exceptional circumstances made in paragraph 47 of this court's decision in Sivasubramaniam v Wandsworth County Court [2002] EWCA Civ 1738. He also referred us to paragraphs 50 to 52 in that case.[19]However, I must confess that I find this palliative somewhat unattractive. First, it seems to me to run somewhat contrary to the basic submission of Mr Tam that the Act and rules should be construed in a manner giving effect to the general aim of finality; and secondly, the possibility of a whole new set of judicial review proceedings, as opposed to a simple statutory appeal to this court on the determination of the question of law, with all the extra delay that such judicial review proceedings might involve, does not seem to me much encouragement to accept Mr Tam's submission regarding the construction of paragraph 23(2) of Schedule 4.[20]For the applicant, submissions are advanced at two levels. First, Schedule 4, paragraph 23(2) must be construed so that the Immigration Appeal Tribunal's refusal to consider whether to grant permission to appeal itself constitutes a refusal for the purposes of paragraph 23(2). Second and alternatively, if that is not possible, then paragraph 27(1) of the rules goes beyond the Lord Chancellor's rule making power, since it removes, or constitutes an excessive fetter on, the statutory right to apply to the Court of Appeal for permission to appeal.[21]Both these submissions Mr Jones for the applicant seeks to support by the consideration that a right to apply for permission to appeal is a valuable right, which should not be removed or qualified by rules of court to a greater extent than is in context necessary. He refers to this court's decision in Saleem v the Secretary of State for the Home Department [2001] 1 WLR 443. That case was concerned with the deemed date of receipt of a special adjudicator's decision for the purposes of calculating time limits for applications for permission to appeal to the Immigration Appeal Tribunal. The relevant section was then section 20 of the 1971 Immigration Act, which read as follows: "Subject to any requirement of rules of procedure as to leave to appeal, any party to an appeal to an adjudicator may, if dissatisfied with his determination thereon, appeal to the Appeal Tribunal and the Tribunal may affirm the determination or make any other determination which could have been made by the adjudicator".[22]The Lord Chancellor had made rules under a rule making power, which is broadly similar to paragraph 3 of the present Schedule 4, although it does not appear to have included any equivalent to paragraph 4(1)(b) in the present rules. The rules which he had made provided for any application for permission to appeal to be made within five days of receipt of notice of the determination of the Immigration Appeal Tribunal and for a deemed date of receipt of such notice on the second day after posting to the relevant applicant.[23]The applicant, Mrs Saleem, said that she had not in fact received any notice, since it had been posted to an address which she had originally and correctly given when appealing to the Adjudicator, but from which she had moved before the Adjudicator even concluded the matter before him.[24]The primary focus of attack in Saleem was upon the deeming provision which contained no alleviating qualification. Indeed, Hale LJ made clear at page 455F that it was not argued on behalf of Mrs Saleem that either the time limit of five days or the rule deeming service to have been properly effected if sent to the address for service provided to the appellate authority was ultra vires. The attack was thus on the deeming provision.[25]The court held that this provision went beyond the powers under the rule making provisions. Roch LJ said at page 449:
"The importance and the nature of the proceedings before the Tribunal are reflected by the provision in the Act that legal representation for the asylum seeker before the Tribunal is to be assured. In my judgment, the right created by section 20 [which I have read] of the Act is a basic or fundamental right, akin to the right of access to courts of law. If it is correct that the section 20 right is a fundamental or basic right akin to the right of unimpeded access to a court, then there is this consequence that infringement of such a right must be either expressly authorised by Act of Parliament or arise by necessary implication from an Act of Parliament, see Raymond v Honey (1983) 1 AC 1 [12 to 13] in the speech of Lord Wilberforce . . . with which Lord Elwyn-Jones, Lord Russell and Lord Lowry agreed"
. Lord Bridge of Harrow went further, saying at page 14: "I would add a third principle, equally basic, that a citizen's right to unimpeded access to the courts can only be taken away by express enactment".[26]Following this decision, alterations to the rules were introduced in 2000. Firstly, the deeming provision was modified so that rule 48, paragraph 2 now reads:
"Subject to paragraphs (3) and (4) any notice or other document that is sent shall, unless the contrary is proved, be deemed to have been received -- (a) where the notice or other document is sent by post to a place within the United Kingdom on the second day after it was sent . . ."
The critical addition there is the words "unless the contrary is proved". Secondly, however, paragraph 18(3), which I have set out above, was for the first time introduced matching, of course, the provision which has always existed in paragraph 7(2) with regard to appeals to an adjudicator.[27]Mr Tam emphasises, correctly, that Saleem was concerned with the potentially arbitrary and unfair effects of the deeming provision, whereas we are concerned in the present case with a time limit which, in view of the modified deeming provision, operates from the date of actual notice, rather than from any artificial date. However, it is also the fact that the second alteration made to the rules must be taken to have involved some recognition on the part of the rule making authorities that, despite the alteration to the deeming provision, there could still be unfairness in exceptional circumstances if the strict time limit for seeking permission to appeal to the Immigration Tribunal was an absolute time limit.[28]I accept that the decision in Saleem concerned a more extreme situation than the present. However, it is, I think, not difficult to envisage exceptional circumstances in which a rigid and final 10 day time limit could still work disproportionate injustice in relation to appeals from the Immigration Appeal Tribunal. Indeed, it is submitted by Mr Jones that this is just such a case and that some significance attaches to the implicit recognition by the rule making authority in relation to lower stages in the appellate process of the need for some alleviation of the rigidity of strict time limits.[29]I have come to the conclusion that the applicant's first submission regarding the interpretation of paragraph 23(2) of Schedule 4 of the Act is correct, meaning that the second does not arise. That sub-paragraph contemplates that, after a refusal by the Immigration Appeal Tribunal, the Court of Appeal will be able to consider the issue of permission to appeal. It seems to me that very clear words would at least, be required before one concluded that rules made under the general rule making power had the intention or effect not only of prescribing a time limit for any application to the Immigration Appeal Tribunal for permission to appeal, so as to affect the Immigration Appeal Tribunal's determination of such an application, but also of precluding any application to the Court of Appeal for permission to appeal or any exercise by the Court of Appeal of the powers which it generally has to grant an extension of time for such an application.[30]The effect of the Immigration and Asylum Procedure Rules is that applications for permission to appeal may be disposed of either on their merits or without a consideration of their merits where there has been a failure to comply with the prescribed time limit. In terms of the rules, therefore, the Tribunal was entitled to express itself as it did, namely by making clear that it was disposing of the application on procedural and jurisdictional grounds and not on the merits.[31]However, for the purposes of Schedule 4, paragraph 23(2) of the statute, I consider that any rejection by the Immigration Appeal Tribunal of an application for permission to appeal, whether on substantive grounds or on jurisdictional and administrative grounds deriving from rules governing the procedure before the Immigration Appeal Tribunal, can and should be viewed as a refusal of permission to appeal by that Tribunal. Such a refusal confers jurisdiction on the Court of Appeal to consider whether it should itself give permission to appeal.[32]I note in this connection that paragraph 4(1)(b) of Schedule 4 contemplates that a procedural failure may lead to disposal of an appeal. By parity of reasoning, it seems to me that the words "if such leave is refused" in paragraph 23(2) of Schedule 4 may themselves be read as embracing either a refusal or an inability on the part of the Tribunal to grant leave for jurisdictional or procedural reasons arising under whatever rules may be introduced.[33]Indeed, it seems possible that the reason why it was not thought necessary to provide for the Tribunal to have any power in exceptional circumstances to extend time for an application for permission to appeal to the Court of Appeal, parallelling the powers which exist in relation to appeals to and from adjudicators, was because it was envisaged that the Court of Appeal would have such power, as it does generally.[34]However that may be, in my view, the Tribunal's refusal to entertain the application for permission to appeal made to it in August 2002 counts as a refusal of permission to appeal within the meaning of Schedule 4, paragraph 23(2). The Court of Appeal therefore has jurisdiction to consider an application for permission to appeal.[35]Whether the form of letter was a standard one or not, the Clerk to the Immigration Appeal Tribunal was thus in my judgment correct when notifying the applicant of the determination on 15th August 2002 in saying that it was open to the applicant to apply to this court.[36]In those circumstances, it is unnecessary to consider the position if I had reached a contrary conclusion, or therefore to consider Mr Jones's more wide reaching attack on the vires, on that hypothesis, of the fixed time limit.[37]I turn, therefore, to the question of extension of time. The conclusion that I have reached does not mean that the applicant is in time to make the present application for permission to appeal to this court, or that she can avoid seeking an extension of time for applying to this court for permission to appeal from the Tribunal. The basic provision of the CPR is CPR 52.4, which provides:
"(1) Where the appellant seeks permission from the appeal court it must be requested in the appellant's notice. (2) The appellant must file the appellant's notice at the appeal court within -- (a) such period as may be directed by the lower court; or (b) where the court makes no such direction, 14 days after the date of the decision of the lower court that the appellant wishes to appeal"
. By CPR 52.1(2)(c), the words "lower court" are defined as meaning "the court, tribunal or other person or body from whose decision an appeal is brought". Therefore, CPR 52.4 is capable of applying to the present situation. By CPR 52.1(4), the whole of this part of CPR is, however: " . . . subject to any rule, enactment or practice direction which sets out special provisions with regard to any particular category of appeal".[38]Special provisions regarding appeals from the Immigration Appeal Tribunal are to be found in paragraph 21.7 of the Practice Direction in the White Book at CPR 52PD-087. This paragraph reads as follows: "(1) This paragraph applies to appeals under paragraph 23 of Schedule 4 to the Immigration and Asylum Act 1999 (appeal on a question of law from a final determination of an Immigration Appeals Tribunal). (2) The period of time within which the appellant must file the appellant's notice at the Court of Appeal in accordance with rule 52.4(2) begins to run from the date the appellant is deemed to have received written notice of the Tribunal's decision to give or refuse permission to appeal under rule 48 of the Immigration and Asylum Appeals (Procedure) Rules 2000 (SI 2000/2333) (Rule 48 of the Immigration and Asylum Appeals (Procedure) Rules 2000 provides that, unless the contrary is proved, where the notice is sent by post to a place within the United Kingdom, it is deemed to have been received on the second day after it was sent. Where the notice is sent by post to a place outside the United Kingdom, it is deemed to have been received on the twenty-eighth day after it was sent)".[39]If one were to construe paragraph 21.7(2) in a way similar to that in which I have read Schedule 4, paragraph 23(2) of the Act, then it could be said that the Practice Direction allowed the applicant 14 days from the date of receipt of notice of the Tribunal's refusal to determine the application for leave, which was 16th or 17th August 2002, but this would mean that, however out of date the applicant had been in seeking permission to appeal from the Tribunal, she could always be in time to seek permission to appeal from the Court of Appeal, provided he or she lodged an application for permission to appeal with the Court of Appeal within 14 days of notice of the Tribunal's refusal to entertain the application.[40]That cannot be right. The interpretation to be put on the concept of refusal in the Court of Appeal's Practice Direction is not necessarily the same as which the concept bears in the Schedule to the Immigration and Asylum Act. The Practice Direction refers expressly to the Immigration and Asylum Procedure Rules. These, as I have explained, distinguish two ways in which applications for permission to appeal may be disposed of: either on the merits; or, in case of failure to comply with the time limit, on the basis of lack of jurisdiction. The Practice Direction must, in my view, be read as relating only to applications for permission to appeal which have been dealt with and disposed of under the rules on their merits.[41]Practice Direction paragraph 21.7 does not therefore apply to the present circumstances. The applicant must fall back on the general provisions of CPR 52.4, under which she is clearly out of time, since they require any application for permission to appeal to be made within 14 days of the decision sought to be appealed against -- in other words, in this case, within 14 days of notice of the Tribunal's decision of 29th May 2002. The applicant therefore needs to apply for an extension of time under CPR 52.6, as she has now done.[42]It is true that this conclusion means that the time for seeking permission to appeal from the Court of Appeal may have expired before there had been any refusal by the Immigration Appeal Tribunal of permission to appeal in circumstances where such a refusal was a precondition to applying to the Court of Appeal for permission to appeal, but that is because the applicant failed to apply in time to the Immigration Appeal Tribunal and so delayed the Immigration Appeal Tribunal's refusal. In such circumstances, there is no incongruity in concluding that the applicant needed an extension from the Court of Appeal from the earliest moment when she could have applied to the Court of Appeal for permission to appeal.[43]Having reached these conclusions, I turn to consider the merits of the application for an extension. Such an application has, as I say, now been lodged with the Court of Appeal by Irving & Co's letter dated 11th December 2002, following my note, and we have, during the course of this hearing, agreed to treat that as an application to amend the notice of appeal to seek permission to appeal and any necessary extension of time for seeking such permission.[44]In the letter, Irving & Co have set out the circumstances which they submit justify an extension, and, as I have said, they have supplemented that with a statement of truth: "We enclose our client's application for leave to appeal to the Court of Appeal. This application is out of time, the last day for submitting this application being 18 June 2002. We would request that the time limit for applying for leave to appeal is extended so that this application is deemed to have been received in time. There are special circumstances that would justify extending the time limit in this case. Our client advises us that at the time that the IAT's determination was received by her she was told by Trott & Gentry, her pervious representatives, that an application for leave to appeal would be lodged. Our client advises us that on 2 July 2002 she was advised by Trott & Gentry that no application for leave to appeal was lodged. Our firm was instructed to act for Miss Ozdemir on 3 July 2002. The only papers in Miss Ozdemir's possession were the Adjudicator and IAT determinations, RFRL and her witness statement. On the same day we sent a fax to Trott & Gentry requesting the immediate transfer of our client's papers in order for us to lodge an application for leave to appeal. We are still awaiting Miss Ozdemir's file of papers to be transferred to us from Trott & Gentry. We instructed Counsel to draft grounds for the application on 5 July 2002. Counsel was supplied with the papers that we had in our possession. In particular we did not have a copy of the IAT's grant of leave to appeal. Yesterday, 8 July 2002, our firm contacted Trott & Gentry by telephone and we were told that the person who was conducting Miss Ozdemir's case was on annual leave. We were told that the person covering for her would return our call. We were contacted later on yesterday by Trott & Gentry. We stressed the urgency of faxing a copy of the IAT's determination to us immediately as the application was out of time. Trott & Gentry informed us that they would fax the determination to us if they had the time to do so. As we were unable to obtain the determination from Trott & Gentry, we sent a fax yesterday to IAT Field House requesting a copy of the grant of leave to appeal and requested that this determination was sent to us by return. Today (9 July 2002) we telephoned Trott & Gentry but the person conducting the case was with a client. We again stressed the urgency of this matter and we were told that our call would be returned later in the day. We still await a call from Trott & Gentry. We therefore contacted Field House by telephone today. We were initially told that the quickest way to obtain the determination was to contact the correspondence unit at Taylor House as the file was in storage. We tried to contact the correspondence unit at Taylor House but a recorded message requested us to call the Customer Services unit in IAA Loughborough. When we contacted the Customer Services unit in IAA Loughborough we were told that it might take 3 - 4 weeks to obtain the file and have the determination sent out to us. The Customer Services unit therefore connected us to the Correspondence unit at Taylor House. The Correspondence unit at Taylor House informed us that the only way that we could obtain a copy of the determination was through IAA Loughborough and we were told that we might receive the determination sometime next week. We contacted IAT Field House and related the above to one of the clerks who requested us to re-submit our request for a copy of the determination. We would submit that it would be unfair to penalise Miss Ozdemir by deeming this application as out of time. Miss Ozdemir relied on the advice of her previous representatives and was lead to believe that an application for leave to appeal would be filed by them. Having found out that it was not lodged Miss Ozdemir approached our firm the following day and therefore cannot be criticised for delay. We would submit that we have taken all steps to try and obtain all the relevant documents from both the IAA and Home Office in order to draft this application. This application has been lodged within 4 working days of being instructed. We have taken all reasonable steps to lodge this application as soon as possible. We have taken all reasonable steps to obtain a copy of the determination of the IAT granting leave and a full set of papers. We may seek leave to amend or vary our grounds once a full set of papers has been received by us. Alternatively we would request that the IAT re-promulgate its substantive determination of 29 May 2002 (and enclose a copy of the grant of leave from the IAT with it) to enable us to lodge our application in time with the benefit of having all the relevant papers before us".[45]Thus it appears, and this is again confirmed by the statement of truth, that on the applicant's case she received the assurances I have mentioned and that she set about with some diligence instructing new solicitors as soon as she discovered that these were unfounded and, further, that the new solicitors set about taking speedy steps over the next days to obtain documentation and information from the previous solicitors and the other relevant authorities.[46]Mr Tam invites us to view with some caution the account given in the letter and the statement of truth. He points out, rightly, that it is evidence only from one side, that it involves serious criticisms of the former solicitors and that over six months has elapsed without the former solicitor's file being obtained. However, so far as I can see from the material we have been shown and from what Mr Jones has told us, that last fact is no fault of the present solicitors or the applicant.[47]It seems to me that there might have been courses open to the Secretary of State to test further the account given, if that had been wished. There may have been some waiver of privilege involved in what has already been said. Mr Tam says that that would raise difficult considerations. However that may be, it seems to me that there is nothing on the face of the material to throw any doubt upon its truthfulness or accuracy and we must proceed on the basis of what we have before us.[48]On that basis, in my opinion, an extension of time is justified. The letter and statement demonstrate what I regard as exceptional circumstances, and I for my part would therefore grant the extension of time necessary to validate the application which was actually made.[49]That leads me finally to the application for permission to appeal itself. The applicant maintained before the Special Adjudicator that she had been the subject of four separate incidents. First, she said, in her interview, her witness statement and orally, that she had in September 1995 been arrested, together with two brothers, and that she had been beaten and abused while in detention.[50]There was some discrepancy in the period for which she said she was in detention. In her interview and orally in evidence, she said two days; in her witness statement, she appears to have said seven days. In her interview, she said that her brothers were in detention for longer, some nine days, and that may be a partial explanation. In any event, she went on to say some five months later they had all been tried but acquitted.[51]Secondly, she said that at a later date she was in the HADEP building when it was raided by the police and she was again questioned and mishandled. HADEP is evidently a Turkish Kurd organisation, suspected by the Turkish Police of being complicit in illegal activity. She put the date in evidence as 1996 to 1997, which was what she had said in her original interview, although in her witness statement she said it was in December 1995. Orally, she said this was a mistake. Since December 1995 would be within the five month period after she was (on her case) originally detained, this might seem likely.[52]Thirdly, she said that she was in March 1998 detained overnight after the Newroz celebrations -- that is apparently an occasion for Kurdish protest -- and she was beaten and abused. The adjudicator observed that she had not mentioned this in her original interview. In evidence, she said that after this course of events, one of her brothers, Karim, fled to Canada, where he sought, and, as documentation produced shows, obtained asylum.[53]Fourthly, she said that she was again detained overnight in March 1999, after the yearly Newroz celebrations, and beaten and abused. She said that it was then that she decided herself to flee and made arrangements. On 4th July, she obtained a letter confirming that she had joined HADEP in December 1998, and on 7th July 1999 she left.[54]The adjudicator did not believe that the applicant was ever detained in 1995 or later, or that she was ever a member of HADEP. She gave reasons for this, as follows:"68. I have come to the conclusion having heard the Appellant give her evidence that she was not detained in 1995 as alleged or at all. I find the Appellant to be a most unsatisfactory witness and I find her evidence on the whole to be incredible. I have come to this conclusion for the following reasons.69. The Appellant has given inconsistent accounts of the length of detention she claims she suffered in 1995. On one account (in her written witness statement) she claimed the detention was for seven days. Before me she claimed the detention was for two days and I found her explanation as to the discrepancy to be unconvincing. Likewise she has claimed that she was tortured during this alleged detention. In her written evidence she claims that she was blindfolded and subject to cold water and electric shock treatment and yet in her oral evidence before me she claimed that something was given to her that made her pass out and after she came round she realised she had been given electric shock treatment. I do not find it credible or plausible that Turkish torturers would sedate their victim before they were about to commence electric shock treatment and I do not find the Appellant's inconsistent later account given orally to be credible or plausible.70. Additionally there is no medical evidence to support the Appellant's claim to have been tortured notwithstanding the fact that the Appellant has now been in the United Kingdom for over 2 years. There is thus no independent evidence to corroborate her claim, which could and should have been obtained had it been true. Taking this into account together with the inconsistencies as to the length of the alleged detention it leads me to the conclusion that she had fabricated the account of her 1995 detention and torture in order to bolster her claim to asylum. I find as a matter of fact that she was not detained and she was not tortured.71. I now turn to the alleged brief second detention during the raid on the HADEP offices. I find the Appellant's evidence as regards this detention to be unconvincing and unsatisfactory. The Appellant has given three different dates on which this detention allegedly occurred. In fact it wasn't a detention at all. If it did occur it was simply that the Appellant was interviewed at the HADEP building and then released. The inconsistencies the Appellant has given as to dates lead me to the conclusion that she has fabricated this account and it is not true and never occurred.72. The Appellant has claimed that she was detained during the 1999 Newroz celebrations along with many others and that during this detention she suffered ill treatment and sexual abuse. She later claimed for the first time in cross-examination that a warrant had been issued for her arrest. She is wanted by the authorities in Turkey. Taking these two allegations together I find they are neither plausible nor credible. If a warrant had been issued for the Appellant's arrest as claimed I am satisfied that a copy could and should have been provided to her by her family in Turkey who have gone to great trouble to provide copies of what little documentation they possess regarding the brothers' difficulties in 1995. If this arrest warrant genuinely exists I am certain that the Appellant's parents would have sent it to her and yet they have failed to do so. The fact that this allegation has been raised very late in the day leads me to the conclusion that this has been fabricated in an attempt to bolster the Appellant's asylum claim. If it had been genuine the Appellant would not have been released from her detention in 1999 and the fact that she was released without charge leads me to the conclusion that her account of this detention is also fabricated given that the ill treatment she alleges is also unsupported by any medical evidence. 79. I do not accept the Appellant's claim that she is a member of HADEP. The evidence obtained purportedly from HADEP a few days prior to the Appellant's departure for the United Kingdom creates doubts as to its provenance. The burden of proof on the right to asylum lies upon the Appellant. She has chosen to produce a document purportedly from HADEP, which is relied upon in support of that right. The timing of the production of this letter coupled with the lack of any formal membership card for HADEP raise questions as to its authenticity. The onus is on the Appellant to establish there is a reasonable degree of likelihood that this document is genuine. I am not satisfied, taking the Appellant's account as [a] whole, that the Appellant has discharged the burden of proof upon her to establish that there is a reasonable degree of likelihood that this document is genuine and has not been created for the purposes of the Appellant's asylum claim. 80. In summary I find that the Appellant has adapted the facts of her brothers' detentions in 1995 to fabricate her own account of persecution at the hands of the Turkish authorities. For the reasons set out above I have not found her to be a credible witness and I do not accept that her account is truthful or genuine".[55]It is now accepted, in the light of submissions on behalf of the applicant, that the adjudicator in her paragraph 69 misunderstood what the applicant was saying about passing out. It was the electric shock treatment itself that she was saying caused her to pass out; from a medical view point, this is entirely plausible, as is confirmed by a medical report, which was requested by the Immigration Appeal Tribunal and was put before it.[56]Permission to appeal was given to the Tribunal on this point. However, the Tribunal concluded on the appeal that it made no difference to the result. It recited the parties' submissions in its paragraphs 10 and 11: "Mr Bilbe referred us to paragraphs 69 and 70 of the determination and said that the adjudicator had given adequate reasons for her adverse finding with regard to the incident of 1995. The medical report addressed only one aspect of that finding. The appellant's evidence was full of inconsistencies and the adjudicator was justified in concluding that the appellant's account was fabricated. He argued that the findings with regard to the other incidents of detention and torture were correct. The determination on the whole was not flawed and the appeal should be dismissed. 11. In reply, Miss Allen reiterated that the adjudicator's finding in respect of the torture in detention had been rebutted by the [expert] report. If such a report was before the adjudicator she would have come to a different finding, which could have affected the other findings on the appellant's credibility".[57]Then in paragraphs 14 to 15, the Appeal Tribunal said this: "We have carefully considered the evidence before us and the submissions we have heard. It appears to us that the primary issue in this appeal is whether the adjudicator was entitled to reach her clear findings on credibility. Having heard the evidence, she did not believe the appellant's account of her detentions and torture. In giving her reasons for this conclusion she referred to the discrepancies between the appellant's statement, her interview and her evidence at the hearing. It is for the adjudicator to decide what weight to attach to these discrepancies. In the course of her reasoning, the adjudicator referred to the appellant's evidence with regard to the electric shock. In view of the medical report it is now accepted that the adjudicator had erred in respect of that reasoning. However, that was not the only reason she had given for finding against the appellant; it was one of the many reasons. The point that the adjudicator went on to make was that she did not believe that the appellant had been particularly targeted, nor that she was of any interest to the authorities. 15. The adjudicator was entitled to reach her conclusions on credibility. They were properly open to her on the evidence. Each factor cannot be looked at in isolation. The adjudicator is entitled to look at the cumulative effect of the various considerations in deciding whether or not the appellant is credible. In our view, the adjudicator's finding on credibility [was] properly open to her, and we find no reason to disturb her finding on the appellant's credibility".[58]Mr Jones criticises the Tribunal's reasons. He submits that when the Tribunal said "it is for the Adjudicator to decide what weight to attach to these discrepancies" and "each factor cannot be looked at in isolation. The adjudicator is entitled to look at the cumulative effect of the various considerations in deciding whether or not the appellant is credible", the Tribunal itself failed to apprehend the logical implications of the application of those principles to its own conclusion.[59]Mr Jones submits that, where you have a combination of circumstances which lead to a conclusion about credibility, then, if one important circumstance is removed, it is not enough to say that the others might still have led to the same result. The decision can only be upheld if the Tribunal considers the circumstances and concludes that it would have led to the same result. Here, he submits, looking at the way in which the Tribunal expressed itself in paragraphs 14 and 15, what the Tribunal appears to have done was either simply endorse the original decision, despite the important error which Mr Jones submits that the Tribunal made, or simply express the view that the Adjudicator would have been entitled to come to the same conclusion without considering whether she in fact would have done, or whether the Tribunal would have done as a body having factual as well as legal jurisdiction.[60]It seems to me that those submissions are at least sufficiently arguable to justify permission to appeal. The test which we have to apply, is whether there is a real prospect of success. We invited the parties to consider whether we should go further and determine the appeal, if we thought that permission should be granted, but that was not acceptable to the Secretary of State.[61]In the circumstances, our present role is simply to decide whether there is a real prospect of success and, having heard the arguments, it seems to me that there is sufficient in Mr Jones's submissions to mean that that is the case.[62]I should mention that Mr Jones also addresses some criticism to the Tribunal's approach to the question whether the applicant was in any event at risk because of her family's connections to separatist elements. There does seem to be some scope for criticism of the Tribunal's reasoning in so far as it rested on the continuing presence in Turkey of Mustafa and Ibrahim, the applicant's brothers. It appears that one is missing and one is fugitive. On the other hand, it may be said that the adjudicator, who dealt with the matter somewhat differently, put it correctly in paragraph 76. However, I would not shut out the applicant from raising this second point on any appeal, for what it is worth.[63]For those reasons, primarily related the first point, I would consider that this is a case for the grant of permission to appeal and I would order accordingly.

MR JUSTICE HOOPER: I agree.

[65]MR TAM: May it please your Lordships, first of all, for the transcript, I think my Lord Mance LJ inadvertently referred to Mr Evans at a couple of points in the judgment.

LORD JUSTICE MANCE: Jones. At least I got the right nationality.

[67]MR TAM: Your Lordship got it right most times, but there are I think one or two.

LORD JUSTICE MANCE: I do apologise, Mr Jones.

[69]MR TAM: My Lord, the second matter, again for the transcript, is what your Lordship mentioned right at the end, dealing with the test for the grant of permission to appeal.

LORD JUSTICE MANCE: Yes.

[71]MR TAM: My Lord, we made a submission that principles akin to those set out in (inaudible) which impose a higher standard that a real prospect of success should be included.[72]Obviously, I am not inviting your Lordship to change the decision, but I should not want it to be recorded that we had conceded that.

LORD JUSTICE MANCE: I will include a reference to Capti-Mehmet. I did mean actually to include a reference to it in what I said, and I am afraid that I overlooked it, but I will add a reference in the transcript and make it clear that you did rely on it.

[74]MR TAM: Yes.[75]If your Lordships rule against me, of course that is the court's decision, but it was not that concession that we had made and I would be grateful if that could be reflected in the judgment.

LORD JUSTICE MANCE: Yes. I shall record the submission. As I say, I meant to deal with it. It is a different situation from the present. It is a situation which involved an application to renew an application for leave to move against the Secretary of State's refusal, I think.

[77]MR TAM: It was in fact the Adjudicator's decision --

LORD JUSTICE MANCE: Yes.

[79]MR TAM: -- the right of appeal to the Tribunal having been lost by neglect.

LORD JUSTICE MANCE: It was an application for leave to move for judicial review of the Special Adjudicator's decision.

[81]MR TAM: My Lord, that is right. So in our case, it would be the equivalent of an application for leave to move of the Tribunal's --

LORD JUSTICE MANCE: Right. I will deal with that and I will record that it was your submission that the principle analogous to that should be applied and I will give a reason that it is a different situation and we are concerned here with the appellate procedure under the rules and, whilst it is a factor that the time was allowed to lapse before, it seems to me that goes primarily to the question of whether we should grant an extension of time.

[83]MR TAM: I am grateful.[84]The last thing is I am not sure that your Lordships' judgment is expressly caught by the Practice Direction, but just in case there is any doubt about it, I wonder if your Lordships would give a direction that this judgment can be relied on under the terms of the Practice Direction relating to authorities?

LORD JUSTICE MANCE: Yes.

[86]MR TAM: Again, if the transcript would make that clear, then there will be --

LORD JUSTICE MANCE: We have to express it, do we?

[88]MR TAM: My Lord, it will help. What one occasionally finds is an opponent, or sometimes the judge, saying: "but you cannot rely on this transcript because it is excluded by the Practice Direction on authorities", and if your Lordships say so in the transcript, that will remove any scope for argument.

LORD JUSTICE MANCE: I think we would direct that the hearing of the appeal of this matter be before a constitution that at least includes Hooper J and myself, unless you have any view to the contrary, and in the next three weeks. That should be possible. I mean possible for the court, rather than for you. It seems to me it should be possible for counsel.

[90]MR JONES: I just wonder whether it is necessary to ask for the matter of costs to be reserved until that hearing, save for a legal aid assessment up to this point? I do not know what the normal formality is.[91]MR TAM: It should be costs in the appeal. If my learned friend wishes to have a legal aid assessment, for safety's sake, we have no observations on that.[92]MR JONES: That is what I ask.

LORD JUSTICE MANCE: Yes. Costs in the appeal and legal aid assessment. Thank you both very much.

Cited in 6 later judgments