MS (Pakistan) v Secretary of State for the Home Department [2015] EWCA Civ 1404

Case No C4/2014/2136[2015] EWCA Civ 1404
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MS GERALDINE CLARK)
Venue 7 Rolls Buildings, Fetter LaneDate Wednesday, 9th December 2015
London
EC4A 1NL
B E F O R E:
LORD JUSTICE DAVIS
Between
MS (PAKISTAN)Applicant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(Digital Audio 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)
Mr D Balroop (instructed by Malik Law) appeared for Applicant
J U D G M E N T

LORD JUSTICE DAVIS:

[1]This is a renewed application for permission to appeal, permission having been refused on the papers by Sir Maurice Kay.[2]The challenge sought to be made is by reference to a decision of the Secretary of State, dated 4th October 2012, where for the purposes of paragraph 353 and 353B of the Immigration Rules the Secretary of State rejected the applicant's fresh claim as advanced.[3]The core complaint is that in that particular decision of the Secretary of State there was contained what is said to be a fundamental error, indicating that the applicant had been an absconder for a period of some 9.5 years when the reality was, it is said, that he had been an absconder for much lesser period of time, namely 2.5 years or thereabouts. It is said that the decision is tainted by that error and accordingly it cannot be said to be unarguably lawful.[4]The challenge was brought by way of judicial review claim and there was indeed a very lengthy period of time which has since elapsed when this appeal was sought to be pursued, it is said, through shortage of funds. At all events the actual decision of the Deputy Judge was dated 10th October 2013. The core reasoning of the Deputy Judge is contained in paragraph 12 of her decision after she set out the background facts and the chapter 53 of the relevant guidance. The Deputy Judge said this:
"It seems to me that this claimant does fall into that guidance. That because he practised deception in entering the UK (as was found by the tribunal judge who was deciding his asylum claim); as he failed to comply with reporting conditions at times and as he has worked illegally, it was entirely rational for the Secretary of State to refuse him leave to remain. The apparent error as to the amount of time he was not reporting is, in my view, not material given the overall circumstances of his case. 13. Therefore, even if I were to accept what is said by him from Mr Richardson as to that being an error I would find that the Secretary of State would have been entitled to make the same decision and indeed would have made the same decision in view of the wording of the guidance."
That was the decision of the Deputy Judge. The actual appellant's notice was filed on 1st July 2014, many months out of time.[5]The first question, therefore, is whether so lengthy a period of delay can be justified and whether there is an arguable case that an extension of time should be granted. In my view, there is no justification whatsoever for granting any extension of time. One understands the points made, by reference to difficulty in raising money, but that cannot justify so lengthy a period of delay and the courts necessarily have to take a relatively strict view of such matters. Accordingly I would reject this renewed application simply on the grounds that the appeal was so very badly out of time.[6]But quite apart from that, I do not in any event accept that there are realistically arguable prospects of success on the proposed appeal. Mr Balroop, who has said everything that could be said on behalf of the applicant, has said that if there was a fundamental error then it cannot be right to say that the result would in any event still have been the same even if that error had not been made.[7]In my view, that begs the question as to whether what here occurred was indeed a fundamental error. It is true there was a misstatement apparently as to the length of the absconding. But the fact remains, under the relevant criteria, among other things there are to be taken into account matters such as whether an individual has failed to comply with reporting conditions and whether he has worked illegally and other such matters. Here the applicant seems to have been in the United Kingdom illegally virtually all the time; and, further, there was a very significant failure to comply with reporting conditions even if it was not long a period as the Secretary of State had thought. I do not think given all the circumstances that the error that was made was in truth a fundamental error. It is quite different from the case of ML(Nigeria) which Mr Balroop cited to me. Put another way, I think the Deputy Judge was perfectly entitled to take the view of the matter as she did. I do not think that there are realistic grounds of appeal. So for both of these reasons and each of these reasons I refuse this application.