IS, R (on the application of) v Secretary of State for the Home Department [2011] EWCA Civ 1558

Case No C4/2011/0652[2011] EWCA Civ 1558
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
(MRS JUSTICE DAVIES DBE)
Venue Royal Courts of Justice, Strand, London,Date Thursday, 10 November 2011
WC2A 2LL
Before
LORD JUSTICE LAWS
Between
R (IS)AppellantSECRETARY OF STATE FOR THERespondentHOME DEPARTMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Ms S Jegarajah (instructed by Thompson & Co) appeared for Appellant. for The Respondent did not appear and was not represented.
Judgment
[1]This is a renewed application for permission to appeal against the decision of Mrs Justice Nicola Davies given in the Administrative Court on 9 February 2011 by which she refused renewal of an application for jurisdiction permission, which had been in its turn refused by Mr David Elvin QC, sitting as a deputy High Court judge on 23 October 2010. Permission to appeal to this court was refused on consideration of the papers by Maurice Kay LJ on 27 July 2011.[2]On 11 February 2010 the UK Border Agency refused the applicant’s application for further leave to remain as a Tier 4 (General) Student Migrant under what is called the Points Based System. The Secretary of State, that is to say the Agency, was not satisfied that the applicant had provided the required documents. The applicant sought to appeal this decision to the First-tier Tribunal. Under the relevant procedure rules the appeal should have been lodged by 1 March 2010 but it was not lodged until 5 March 2010. IJ Bailey considered a preliminary issue as to whether he should extend time. He ought only to have done so if he was satisfied on the balance of probabilities that there were special circumstances which would render it unjust to refuse an extension under Rule 10(5) of the Asylum and Immigration Tribunal (Procedure) Rules 2005. He referred to the case of BO (Nigeria) [2006] 00035 which sets out guidance for applications for such extensions and makes it clear that the starting point is the explanation, if any, for the appeal being out of time. Ms Jegarajah this morning has shown me the BO case which is in the bundle. The immigration judge noted at paragraph 3.1 that it was stated in the application that the delay was due to failure to check the deadline date. He refused to extend time. David Elvin QC, refusing judicial review permission, observed: “The limited explanation and evidence for the delay advanced by the claimant in the light of BO appears to me to provide a reasonable basis for the rejection of the application to extend time for appealing." Therefore, as I have indicated, he declined to grant judicial review permission.[3]The applicant, having sought to renew the application, sought observations from the Treasury Solicitor who replied on 20 December 2010, taking some points in relation to the chronology. I have read but need not set out the letter. Mrs Justice Nicola Davies considered that David Elvin QC had been right and declined for her part to grant permission. Ms Jegarajah this morning has submitted first of all that the case is a very harsh one. Her client was only four days late; the only failure in his application for an extension as a student was a failure to provide documents. She says that he has, to use her words, "lost everything" and it is one of those cases where, as a matter of discretion, the court ought to grant an extension of time. She has also referred me to a document published by the National Audit Office but essentially being a Border Agency document; it is entitled, "Immigration: the Points Based System - Work Routes" and was published on 15 March 2011. It is not in evidence yet; Ms Jegarajah handed it in this morning. The purpose of her doing so is to point to a passage at paragraphs 12 and 13 under a heading at the top of the page where those paragraphs appear which reads, On the Efficiency and Value for Money Offered to Stakeholders of the System. Paragraphs 12 and 13 are as follows:
“12. The Agency provides some useful guidance but migrants often struggle to get the information and assistance they need, leading to additional delay and, potentially, cost to applicants who get it wrong. Many applicants are unclear what supporting documentation they have to provide and around half of applicants telephone the Agency’s helplines although they often struggle to get through. In 2009-10, the Agency rejected some 8,500 migrant applications made in the UK because the application was not correctly made. 13. The Agency has not evaluated the success of its policy of ‘evidential flexibility’, introduced to reduce the number of rejected and failed applications, nor applied it consistently. From August 2009, caseworkers have been able to give applicants three days to provide additional information but the Agency cannot say how many times it has applied the policy or what the results were. Before February 2011 it was not being applied in some locations overseas.”
[4]Ms Jegarajah says that if this policy had been applied in her client’s case he would have had a successful appeal because the only defect in his application, namely the want of documents, would have been remedied.[5]It is quite unclear whether the relevant caseworkers had this policy or practice in mind at the time of the decision of the Border Agency in this case. The documentation in the bundle is silent about it. That seems to me to be consistent either with its being applied or with its not being applied. It is also plain from paragraph 13 that the policy is not a settled one in the sense that it has been applied rigorously in every case. It seems to have been applied piecemeal and I would have thought that there is no legitimate expectation arising from this document at any rate that would have been applied in any other way. It does not seem to me that this is enough to take Ms Jegarajah’s case beyond the point where it seems to me it otherwise stands and that is that there is not a good enough reason here for the delay.[6]The applicant has put in what is referred to as an "updating statement" dated 8 November 2011 giving some particulars of his circumstances and indeed his failure to put in his appeal in time. He had some breathing and sleeping problems (paragraph 5), he visited he doctor, he was drowsy and tired and indicates -- as indeed is stated elsewhere -- that he thought he had 28 days to file the application which he did not.[7]I am afraid there is nothing in the documents relating to the Border Agency’s decision itself significantly pressing to override the force of the rule here, and the reasons given for the applicant being late seem to me to be inadequate to pass any reasonable and appropriate hurdle. In those circumstances I refuse permission.

Order

Application refused.