MK (Iran), R (on the application of) v The Asylum & Immigration Tribunal & Ors [2007] EWCA Civ 554

Case No C4/2006/1965[2007] EWCA Civ 554
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION ADMINISTRATIVE COURT
(MR JUSTICE BURTON)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 3 rd May 2007
Before
LORD JUSTICE DYSON
Between
THE QUEEN ON THE APPLICATION OF MK (Iran)AppellantTHE ASYLUM & IMMIGRATION TRIBUNAL & ORSRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Ms A Weston (instructed by Messrs Luqmani Thompson & Partners) appeared for Appellant. for The respondent did not appear and was not represented.
Judgment
[1]The applicant is a citizen of Iran. He arrived in the United Kingdom in September 2000. He subsequently claimed asylum. That claim was refused. His appeal was dismissed in June 2001. It seems that the applicant did not attend the appeal hearing nor did his legal representatives. Nevertheless, he remained in the United Kingdom thereafter. On 13 December 2004 he was convicted of sexual and common law assault at Isleworth Crown Court. He was sentenced to 20 months’ imprisonment and recommended for deportation. On 12 April 2005, whilst he was detained in Wormwood Scrubs, he received a letter notifying him that a decision to deport him was to be made and the letter was left in his cell by an officer. His grasp of English is limited. He cannot read or write English. No interpreter was provided to him whilst he was in custody when he received the letter. It is his case that he was unaware of the time limit for lodging an appeal. For the reasons that he sets out at paragraph 6 to 12 of his witness statement of 29 July 2005, he was unable to obtain representation in order to complete and submit the necessary forms in time. The appeal documentation was not lodged until it was submitted by the Immigration Advisory Service on his behalf on 2 June 2005. This was more than five weeks out of time.[2]The appeal notice lodged by the IAS contained an explanation as to why the appeal was being lodged out of time. It said:
“The appellant received the notice of Decision to make a Deportation Order on 12/4/05. However the appellant was unable to lodge his appeal within the time allowed because he did not know how to complete the appeal form nor was he able to get assistance to help him submit the appeal. IAS took instructions only on 31/5/2005.”
The notice also contained grounds indicating the basis upon which he was seeking to appeal against the decision to make a deportation order. He said, in the relevant section of the appeal form:
“The appellant maintains that the deportation order is unlawful because it is incompatible with his rights under Articles 2 and 3 of the European Convention on Human Rights and Fundamental Freedoms, as he would face a real risk to being subjected to torture or degrading or inhuman treatment and punishment and a risk to being killed by the Iranian authorities for deserting from the army and refusing to fight, as well as because of his conversion to Christianity from the Muslim faith while in the UK.”
On 3 June 2005 the immigration judge refused to grant the applicant an extension of time for appealing. He said in a brief set of reasons this [page 59]:
“3. There has been an explanation [for the delay]. I have taken account of it. The explanation is that the Appellant was aware of his refusal, but was unable to complete the appeal form or obtain advise [sic]. “4. Many Appellant’s [sic] are not represented [and] almost all have language difficulties and the delay here is substantial, the matters raised are not special circumstances, many Appellants in the same position file their appeals in time. “5. I am therefore unable to find that special circumstances exist whereby I can extend the time limit.”
[3]The applicant applied for judicial review of this refusal. Burton J refused the application. This is the renewed application for permission to appeal, following refusal on the papers by Carnwath LJ. The relevant rules are contained in the Asylum and Immigration Tribunal (Procedure) Rules 2005. Rule 7(1) provides:
“7. – (1) A notice of appeal by a person who is in the United Kingdom must be given – (a) if the person is in detention under the Immigration Acts when he is served with notice of the decision against which he is appealing, not later than 5 days after he is served with that notice; and (b) in any other case, not later than 10 days after he is served with notice of the decision.”
Rule 10 makes provision for late notice of appeal. Sub-rule (5) provides:
“10. – (5) Where the Notice of Appeal was given out of time, the Tribunal may extend the time for appealing if satisfied that by reason of special circumstances it would be unjust not to do so.”
[4]Special circumstances are not defined in the rules. In BO & Ors (Extension of Time for Appealing) Nigeria [2006] UKAIT 00035, the AIT gave valuable guidance as to the correct approach to be adopted to the extending of time under the 2005 rules. Burton J expressly approved that decision at paragraph 18 of his judgment. At paragraph 20 Burton J said:
“20. It is plainly, in my judgment, that, on the information before the single Immigration Judge, he was plainly entitled to conclude in accordance with the principles in HO that there were no grounds to support an extension of time, and that that decision was neither irrational nor perverse, nor, given that the judge was doing expressly that which he has a duty to do, namely consider an application for an extension which, if not granted, would rule out an appeal, was it disproportionate.”
He then considered the grounds on which the application for judicial review was based and concluded at paragraph 22, in agreement with Stanley Burnton J, who had refused the application for permission on the papers:
“The decision of the tribunal has to be considered on the basis of the information provided to the Immigration Judge when he made it. On that basis, he was entitled to reject the application to appeal out of time. There were no special circumstances sufficient to require time to be extended by the time required.”
The judge then turned to consider the fresh evidence that the applicant sought to adduce to amplify the meagre explanation given in the Notice of Appeal for the delay.[5]The judge reviewed the authorities which deal with the admissibility of fresh evidence. He held that the Ladd v Marshall test was not satisfied. He considered E v Secretary of State for the Home Department and decided that there were no “exceptional circumstances to disallow the effect of Ladd v Marshall”. Accordingly, this was not a case in which it would be appropriate to permit the applicant to rely on additional evidence (see paragraph 32). Nevertheless he went on to consider the fresh evidence in any event, to see whether it would support a case for an extension of time under rule 10(5).[6]When considering the question at this stage of his judgment, unfortunately he posed the question whether the evidence showed that there were “exceptional circumstances” (see paragraphs 40, 42, 44 and 45). It seems to me that the judge confused the criterion to be applied in deciding whether or not to admit fresh evidence, which did require there to be exceptional circumstances, with the criterion laid down in rule 10(5), which requires there to be special circumstances. The judge also at paragraph 43 said:
“This is not a case, I am satisfied, in which someone who is in prison is denied access to legal advice. As I have already indicated, and has been accepted, the principles are that a lesser period is allowed to those in detention than to those not in detention, simply because, no doubt, of the assumed easier availability of legal advice, coupled with the fact that, when in custody, such a person will have, sadly, nothing else to do other than to get their appeal in order, as opposed to someone out in the community who may be diverted into other areas.”
[7]I can now turn to the grounds of appeal. I observe that it is not argued that the judge was in error in refusing to admit the fresh evidence. The question is whether there is a real prospect of successfully arguing that the judge was wrong to conclude that the immigration judge was entitled to hold that there were no special circumstances justifying an extension of time. I have already indicated that the judge misdirected himself in paragraphs 40, 42, 44, and 45. I accept that special circumstances are not the same as exceptional circumstances and that what had to be established, in the present case, was the existence of special circumstances. But it seems to me that it is clear that the immigration judge purported to decide whether there were special circumstances and not whether there were exceptional circumstances. Whatever criticisms can be made of paragraph 40 and following of the judgment, the judge correctly considered, at paragraphs 20 and 22, whether the immigration judge was right to hold that there were special circumstances. The question of principle sought to be raised on behalf of the applicant by Ms Weston, in her skeleton argument, is whether special circumstances are different from exceptional circumstances and, if so, in what way. But it seems to me that that question does not arise on the facts of this case, because the immigration judge purported to decide whether there were special circumstances.[8]The other point sought to be raised is whether the immigration judge took into account all relevant factors. In particular, it is submitted that the immigration judge failed to take account of two factors. First, that the applicant was detained in a prison; and, secondly, that the consequences for him of removal to Iran were alleged to be that there would be a breach of his article 2 and 3 rights. It is said that the difficulties facing a person detained in prison who wishes to obtain legal advice in relation to the lodging of an appeal are considerably greater than those facing a person who is detained in an immigration detention centre. It is also said that at paragraph 43 of his judgment, the judge failed to recognise this distinction and it is one of which the immigration judge should have been aware and taken into account.[9]It is true that the reasons given by the immigration judge are exiguous but so were the reasons advanced by the applicant for the extension of time. All that the applicant said was that he did not know how to complete the appeal form and was not able to get assistance to help him in time. The immigration judge’s response was that many applicants are unrepresented and almost all of them have language difficulties. He summarised it by saying “many applicants in the same position file their appeals in time”. On the information available to him, it seems to me that this was a reasonable response.[10]In the course of her oral submissions, Miss Weston has concentrated upon the other aspects of this part of the case. She submits that the immigration judge was in error in failing to take into account the human rights point. I am prepared to accept that the immigration judge did not or at least arguably did not take that into account. Miss Weston has drawn my attention to what was said by the AIT in the case of BO, in particular at paragraph 21(ii):
“There is thus no doubt that the consequences of refusal to extend time are likely to be more severe when the decision against which the appeal is to be brought is one which carries a threat of removal. We have no doubt that the Duty Judge should take that into account.”
She also draws my attention to paragraph 23 where the tribunal state:
“But where there is an explanation for the delay and other factors have been taken into account, the decision must contain enough information for the reader to be confident that the judgment was a proper response to the material available.”
The tribunal at paragraph 21(i) offered helpful advice as to the role of the substantive grounds of appeal in the decision-making process by an immigration judge faced with an application for an extension of time. What they said was this:
“As we have said, good grounds of appeal cannot be a substitute for timeliness. If there is an explanation for the delay, however, the strength of the grounds of appeal may help to compensate for a bad excuse. The strength of the ground should therefore always be taken into account in deciding whether to grant an application for the extension of time that is properly supported by an explanation and evidence. The stronger the grounds are, the more likely it is that justice will demand that they be heard.”
Like the judge, I would adopt that as being a helpful approach. The difficulty facing the applicant in this case, as it seems to me, is that the explanation provided by the applicant, in support of his application for an extension of time, was one which did not impress the immigration judge at all, for the reasons I have already mentioned and in respect of which he was entitled to take that view. Nor was the application supported by any evidence at all. It seems to me therefore that, even if the immigration judge had expressly addressed the question of the strength of the grounds of appeal, having taken the view that he did as to the lack of an explanation for the delay, he would have been bound to reach the same view, even in the light of the substantive grounds of appeal.[11]Miss Weston submits that the immigration judge should have been aware, from his own knowledge, that returning a person who claimed to have been a deserter and a convert to Christianity to Iran was likely to involve a violation of his article 2 and/or 3 rights. The immigration judge would or should have been aware of the current in-country guidance. But the appeal form contains no more than an assertion and the barest of outlines as to the nature of his case and, as I have said, that has to be viewed against the background of an application which contained an explanation for the delay in lodging the Notice of Appeal which the immigration judge was entitled to conclude carried little or no weight.[12]In these circumstances, I am satisfied that this appeal would have no prospect of success and I refuse the application.

Order

Application refused.

Cited in 1 later judgment