F4 v Secretary of State for Home Department [2025] EWCA Civ 291

[2025] EWCA Civ 291Case No CA-2024-000744
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS COMMISSION
Mr Justice Lane, Upper Tribunal Judge Pickup, Sir Andrew Ridgway
SC/193/2022
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21 March 2025
Before
LORD JUSTICE BAKERLADY JUSTICE ELISABETH LAINGLORD JUSTICE HOLGATE
Between
F4AppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Dan Squires KC and Eleanor Mitchell (instructed by Birnberg Peirce) for AppellantDavid Blundell KC and Naomi Parsons (instructed by the Treasury Solicitor) for RespondentHearing Hearing date: 22 January 2025
Approved JudgmentThis judgment was handed down remotely at 11.00 am on 21 March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]This is an appeal on a point of law from a judgment of the Special Immigration Appeals Commission (‘SIAC’) (Lane J, Upper Tribunal Judge Pickup, and Sir Andrew Ridgway). The Appellant, (‘F4’), asked SIAC to exercise its power to extend the time for bringing her appeal against a decision of the Secretary of State to deprive her of her British citizenship (‘the Decision’). In its reserved judgment, SIAC refused to exercise that power in her favour.[2]There are three grounds of appeal (see paragraph 75, below). For the reasons given in this judgment, I would dismiss the appeal on all those grounds. I consider that SIAC carefully found and analysed the relevant facts, and that, on those facts, was entitled, and, indeed, right, not to extend the time for bringing the appeal.[3]On this appeal F4 was represented by Mr Squires KC and by Ms Mitchell. Ms Mitchell represented her in SIAC. The Secretary of State was represented by Mr Blundell KC and Ms Parsons. They also appeared in SIAC. I thank counsel for their written and oral submissions, including F4’s further submissions after the hearing of this appeal, which were prompted by the attachments to the letter dated 3 February 2025 which the Government Legal Department (‘GLD’) sent to the appellant and to the court. I refer to that letter in paragraph 10, below. Unless the context suggests otherwise, paragraph references in this judgment are to the paragraphs of SIAC’s judgment (‘the judgment’).

The relevant rule

[4]The time limits for an appeal to SIAC are imposed by rule 8 of the Special Immigration Appeals Commission (Procedure) Rules 2003 SI No 1034 (‘the Rules’). Which limit applies depends on a range of factors. The limit when a person is outside the United Kingdom, as F4 was at the relevant time, is 28 days from the date when the notice of the relevant decision is served. It is imposed by rule 8(1)(b)(ii). Rule 8(5) confers SIAC’s power to extend that time limit. It provides:
‘The Commission may extend the time limits in this rule if satisfied that by reason of special circumstances it would be unjust not to do so’
.

SIAC’s decisions on rule 8

[5]In paragraph 6, SIAC referred to an earlier judgment of SIAC in C12 v Secretary of State for the Home Department (16 September 2022) (Saini J, Upper Tribunal Judge Lane, Mrs Battley) [2022] UKSIAC 3 N A.

C12 v Secretary of State for the Home Department

[6]In C12, notice of the deprivation decision was served on 18 August 2013. The appeal was not lodged until 14 December 2020. The appellant asked for an extension of time of over seven years. In paragraph 8, SIAC said that there was one issue: whether by reason of special circumstances it would be unjust not to extend time. The short answer to that question was that there were no such circumstances, because the appellant had known about the deprivation decision since 21 August 2013. SIAC gave its reasons for that finding in paragraphs 21-34.[7]In those circumstances, the appellant had given no ‘proper explanation for his inaction since then. His position is deeply unmeritorious and our conclusion is that he deliberately did nothing to challenge the decision with full knowledge of it and the process for challenge’ (also paragraph 8). In paragraph 58 SIAC added that the appellant did not ‘get past “first base” by explaining the delay’. SIAC added that any explanation for the delay must cover the whole period (paragraph 59). SIAC added that, it having rejected the appellant’s case that he did not know about the decision until March 2020, ‘the case on special circumstances falls away’ (paragraph 60).[8]In paragraph 19, SIAC said that the parties had referred to several authorities. It summarised the position in this way:
‘The Commission is exercising a fact sensitive and case specific discretion and is to be guided by the following principles: (1) The burden is on the Appellant to demonstrate that by reason of special circumstances it would be unjust not to extend time, and that burden is to be discharged on the balance of probabilities by way of evidence as opposed to submission. The reference to “special circumstances” underlines the need to show that there is a reason the normal time limits should be disapplied. (2) The starting-point is the explanation for the entire period of the delay. If there is no explanation, or no satisfactory explanation, or an explanation unsupported by evidence from the Appellant that ought to have been readily available, then it would generally not be appropriate to extend time. (3) Once the explanation for the delay has been established, other factors relevant to the decision are to be balanced by the Commission. The task is to identify “injustice” and that is a two-way street which includes both injustice to the Appellant and to the Respondent who represents the public interest. (4) Without being prescriptive, we consider the following factors may be relevant: (i) the merits of the proposed appeal (if a view can be formed at this early stage - which is unlikely in a national security case dependent on CLOSED evidence); (ii) the prejudice to the Respondent; and (iii) the importance of the underlying issue. As to the last point, removal of citizenship engages a person’s fundamental rights (Pham v Secretary of State for the Home Department[2015] 1 WLR 1591). However, the courts recognise that proper respect must be paid to domestic time limits, which may preclude consideration of the substantive case, even in cases where very serious matters are in issue such as Article 3 ECHR. The importance of the right in issue is relevant but it cannot be given conclusive weight.’
[9]For the reasons it gave in paragraphs 37-39, SIAC held that the Secretary of State had no duty to search for the appellant in order to effect service.

F3 v Secretary of State for the Home Department

[10]By a letter dated 3 February 2025, GLD drew attention, among other things, to a more recent decision of SIAC (F3 v Secretary of State for the Home Department [2025] UKSIAC SC 192 2022 (31 January 2025) (Swift J, Upper Tribunal Judge Gleeson and Mr Neil Jacobsen)). The court then asked the parties whether they wished to make submissions about F3, or the other material. F4 did so, but the Secretary of State did not. I have read those submissions, but do not consider it is necessary to refer to them specifically.[11]F3 was a dual Pakistani/British national. She, her husband (‘H’), and their three children travelled to Syria in around 2016. The Secretary of State made a decision to deprive her of her British citizenship on 22 April 2017. The letter enclosing the notice of the decision, which was sent to her last known address, was returned to the Secretary of State, unopened. She filed her notice of appeal on 19 August 2022.[12]SIAC found that she saw at least the first page of the notice in January 2020. It was common ground that she knew about the decision by late December 2019. By that time, she and her children were in Camp Al Hol. She had suffered a serious head wound in fighting in Baghuz in early 2019 and one of her children was killed. She had been separated from H. They were taken to Camp Al Hol by soldiers of the Syrian Defence Force (‘the SDF’). F3 said that they had beaten her severely. She and her children stayed there until around August 2020. SIAC described the dire conditions there in paragraph 10. They then moved to Camp Al Roj. SIAC described their conditions there in paragraphs 18-20.[13]SIAC referred to the decision in this case in paragraph 15. It explained why F4’s application for an extension of time failed. It considered that the ‘special circumstances’ required by rule 8(5) must be ‘substantial and there must be correlation between the special circumstances found to exist and the appellant’s ability to file the appeal such that it would be unjust not to allow the application to extend time’. In short, SIAC was satisfied, on the facts, that the conditions in the two camps ‘provided a clear and substantial and, on occasion, no doubt overwhelming impediment to commencing an appeal against the deprivation decision’ (paragraph 21). SIAC also took into account the further factors which it described in paragraph 22. It explained in paragraphs 23-40 why it rejected the Secretary of State’s arguments that time should not be extended.

SIAC’s legal analysis in this case

[14]SIAC recorded that the parties did not disagree with the approach of SIAC in C12. SIAC said (paragraph 7) that it considered that that approach was correct.[15]SIAC added ‘a word’ of its own. SIAC accepted F4’s submission that there is no ‘discrete requirement that the circumstances should, in some way, be rare or unusual’. That was important in the instant case, which was one of many involving people who had travelled to Syria, allegedly aligned themselves with ISIS and were now in camps such as Camp Al Roj (paragraph 8).[16]In each case, even if an appellant’s situation was superficially like that of others, it was necessary to analyse the facts and circumstances which were particular to that appellant. The ‘ultimate question’ was whether it would be ‘unjust’ not to extend time. That was ‘a high hurdle’. It was not necessarily to be equated with hardship to an appellant. Any such hardship had to be set against ‘the important general principle of legal certainty and the desirability of ensuring compliance with rules of procedure’. The rules ensured fairness not just between the parties but between the parties and other appellants who had complied with the rules and whose appeals may be delayed if time is extended in another case. The length of any extension of time was also relevant, as the longer the delay, the harder it might be to evaluate evidence and assessments (paragraph 9).

The facts

[17]I have taken the facts from the judgment. F4 was born in Somalia on 25 October 1996. When she was about three, she came to the United Kingdom to live with her mother. When she was 17, she left the United Kingdom for Syria. She married a Swedish Somali. She had two children with him, a son, who was born in 2016, and a daughter. Her daughter died when she was only a few months old. F4 said that her husband abused her physically and verbally. In the first half of 2019, not long after her daughter died, F4 fled ISIS territory in Syria with her son. She arrived in Camp Al Hol, which SIAC described as a ‘facility…which was controlled by the Syrian Defence Force’ (‘the SDF’). Since March 2021 she and her son have been in Camp Al Roj, which is also controlled by the SDF. By the time of the hearing in SIAC, she was 27.[18]The Secretary of State made the Decision on 20 December 2019. The Secretary of State certified it, with, in short, the consequence that F4’s right of appeal was to SIAC. The decision was served to file. The practice of serving to file was retrospectively validated by section 10 of the Nationality and Borders Act 2022, which came into force on 28 April 2022. The 28-day period imposed by rule 8(1) expired on 18 January 2020.[19]In paragraphs 10 and 11 SIAC summarised the ‘central feature’ of the case. F4’s mother was in the United Kingdom at the relevant time. She was told about the decision ‘at some point between 27 December 2019 and 5 January 2020’. She told F4 using VoiceNote (via WhatsApp) to a mobile telephone to which F4 had intermittent and unauthorised access. Mobile telephones were ‘proscribed by the camp authorities’. In a number of VoiceNote messages in early January 2020, F4 told her mother that she did not want to appeal against the Decision.[20]The Secretary of State’s case was that F4 should be taken at her word. Her later decision to give instructions for the lodging of an appeal in the summer of 2022 was a change of mind. Even if the very challenging conditions in the camp were taken into account, this was not a good reason for extending time. F4’s case was that, on the evidence, her state of mind was such that she should not be taken to have made a decision at all, which meant that she had not later changed her mind. She had only gradually understood the significance of the Decision, and had only gradually developed the confidence to challenge it.[21]SIAC then explained the context of the VoiceNotes, by reference to the witness statements of Ms Maya Foa of Reprieve, an organisation which had been helping F4. The first contact between Reprieve and F4’s mother and two cousins was in July 2019. They told Reprieve that F4 was detained in Camp Al Hol. They said that she had been injured and that she and her son were starving. They explained that their contact was irregular because F4 had to borrow mobile telephones from other inmates. There was a further meeting in August. F4’s family told Reprieve that she and her child were still in a dire state. On 27 September 2019 F4’s mother gave Reprieve a signed authority to act on F4’s behalf, to consult lawyers and to communicate with the British Foreign and Commonwealth Office (‘the FCO’).[22]On 29 November, Reprieve wrote to the FCO to ask for consular assistance for F4 and her child, to ‘facilitate their return to the UK as a matter of urgency’. Their health had ‘deteriorated dramatically’. The FCO replied on 24 December. The Foreign Secretary was not willing to help F4. FCO officials had also been told that the Secretary of State had, separately, taken the Decision.[23]Birnberg Peirce Solicitors had already been instructed to act in connection with the request for repatriation. On 27 December, the Secretary of State wrote to Birnberg Peirce to say that the Decision had been served to file. It therefore seemed that both Reprieve and Birnberg Peirce had been told about the Decision. It also seemed that F4 had herself become aware of the Decision at some point between 27 December and 5 January 2020, and ‘had indicated that she did not wish to appeal it’. SIAC explained that that finding was based on an exchange of VoiceNote messages between F4’s mother and F4 on 5 and 6 January 2020, which SIAC quoted in paragraphs 17, 18 and 19. SIAC quoted a further VoiceNote sent by F4 on 5 January to her mother. All three VoiceNotes were in Somali and had been translated.[24]The first VoiceNote referred to an earlier VoiceNote which F4’s mother had sent to F4 telling her that her citizenship had been revoked the previous Friday. F4’s mother told F4 that ‘We can appeal [the Decision]’. F4’s mother sent a letter ‘written by a human rights lawyer’ as an example to show F4 what she should say in order to exercise her right of appeal. Her mother told F4 to write such a letter and to send it to her. F4’s mother wanted to ‘go ahead with appeal’, but she explained that ‘it needs to be expressed by you that you want to appeal your citizenship’ (paragraph 19).[25]On 6 January, F4 sent a VoiceNote saying ‘Please leave the appealing of the visa/ID. I told you mum but maybe you did not understand me in the first VoiceNote’. SIAC commented that the translator’s certificate explained that the phrase which had been translated as ‘visa/ID’ could equally have been translated as ‘citizenship’, because the relevant Somali phrase includes both concepts.[26]F4 sent a VoiceNote to her mother (again in Somali) on 6 January which SIAC also quoted in paragraph 19. F4 said that she was not angry with her mother, ‘but I wanted to say this quickly. Please leave the idea of appealing the ID/visa’. As she had explained in the first VoiceNote, which her mother had perhaps not understood, if they took her ‘ID/visa… then god may provide another way/open another way for me. If they are going to take away my ID/visa, then leave it. So, please, leave it and do not open a case, mother. Just leave it’.[27]On 9 January 2020, Reprieve sent a letter to F4’s cousin, written by Ms Bedford, which was addressed to F4. That letter was sent to F4 on the same day, via F4’s mother’s phone. It was an exhibit to Ms Foa’s second witness statement. It was over two pages long. SIAC described the contents of the letter in paragraphs 20-27. Ms Bedford had summarised the position and had said that Reprieve was working closely with two solicitors at Birnberg Peirce, and that they would like to help F4 to challenge ‘the decisions’ so that F4 could return to the United Kingdom with her son, if that was what she wanted. In the context, the word ‘decisions’ must include the Decision and the decision to refuse help with repatriation. Ms Bedford referred to the exchange of messages between F4 and her mother. The letter said that F4’s mother had already asked her whether she wanted to appeal, but it was ‘a big decision’ and it was difficult for her mother to explain everything in a VoiceNote. Ms Bedford wanted to make sure that F4 had more information before deciding what to do. Ms Bedford then explained what F4’s options were.[28]The British Government would not help F4 to return but might help her son. Ms Bedford knew that that was not what F4 wanted. If F4 wanted, Reprieve would help her to try to make sure that the British Government helped them both to return. The solicitors thought that there were two ways in which they could help F4. The first was to appeal against the Decision. They explained F4’s identity would be protected. They thought that F4 should appeal because if she did not keep her nationality, ‘it will be very hard for you to ever come home to the UK or even to visit…’ The second was to apply for judicial review of the decision not to help to repatriate F4 and her son.[29]Under the heading ‘What should you do if you want to come home…’, Ms Bedford said that if F4 still wanted to return the advice was that she should appeal and apply for judicial review. The deadline for appealing, 20 January, was ‘very soon’. If F4 did not challenge the Decision, it would be ‘much, much harder for you to come back home’. If she thought there was a chance that she might want to come back to the United Kingdom with her son, or continue to be a British citizen, Ms Bedford suggested appealing the Decision ‘now. It will be very very hard (maybe impossible) to do this later’ (emphasis as in the letter). She could always withdraw the appeal later were she to change her mind. It was a ‘big decision’ and F4 would probably have questions. If F4 sent a VoiceNote to her mother, she could pass this on to Reprieve and they would try to answer her questions.[30]The next heading was ‘What are the next steps?’. F4 was given a form of words to pass to her mother, giving instructions for Birnberg Peirce to act for her in the appeal. That was the most important thing to do. She should write the words on a bit of paper, sign and date it, photograph it, and send it to her mother.[31]On 16 January 2020, F4 sent her mother a VoiceNote in Somali. She said, ‘I told you I do not want it so please tell those who sent the letter I don’t want it’. She sent a further message that day, in English:
‘I do not want the British citizenship’
. F4’s cousin sent her two messages on 17 January 2020, in English, urging her to appeal and saying that she could always change her mind later if she no longer wanted to appeal. Ms Foa’s evidence was that she was not aware of any response to those messages.[32]There was no evidence that anything was done about any appeal between 18 January 2020 and 8 July 2021, when Ms Foa and a colleague met F4 at Camp Al Roj. In paragraph 31, SIAC described Ms Foa’s account, in her first witness statement, of a conversation between them and F4 about a possible appeal. It was, according to Ms Foa, clear that F4 did not fully understand the implications of the Decision. She was very fearful, and had a ‘deep-seated misapprehension’ about the consequences of an appeal for her and for her child. She was afraid that the British Government would take her child away by force. Ms Foa told F4 that her son would not be repatriated alone unless she consented, but could not dispel F4’s fears. Ms Foa’s evidence was that women in camps often had misunderstood the process of appealing a deprivation decision and its consequences for their children. They have no access to legal advice or any reliable way of communicating with people outside the camp. As a result, ‘rumours and misinformation’ spread quickly.[33]Ms Foa and her colleague met F4 again on 10 July 2021. F4 gave Reprieve written authority to help with her welfare and with ‘repatriation-related services’. SIAC had asked at the hearing to see a copy of that authority. SIAC summarised it in paragraph 31. Its terms were very wide. It included Reprieve arranging for lawyers in the United Kingdom to represent F4 and her son in legal proceedings about their repatriation and providing ‘assistance in relation to any proceedings in UK courts and tribunals concerning the same’. By signing it, F4 acknowledged that the authority had been fully explained to her in a language which she understood and that she understood the consequences of giving the authority.[34]There was a further meeting at the camp in December 2021. According to Ms Foa, F4 was still fearful and worried about the deprivation of her citizenship ‘which would result in her child being taken away’. She wanted to return to the United Kingdom but did not want to be separated from him. If she had not been worried about him, ‘she would be fine to appeal’. Ms Foa tried to reassure her. At the end of the meeting, she said that she needed more time to make up her mind.[35]Ms Foa and her colleague met F4 again at the camp on 15 June 2022. F4 seemed more relaxed and better able to understand their explanation about the Decision. They told her that the appeal was ‘time sensitive’. F4 asked them to come back and to continue the discussion. They met again on 18 June. They discussed the Decision ‘at length’. F4 then said that she did want to appeal against the Decision. She gave an ‘oral authorisation’ to Reprieve for a solicitor at Birnberg Peirce to represent her.[36]On 22 October 2022, several weeks after the appeal had been filed out of time, Ms Foa and her colleague again met F4 at the camp. Ms Foa asked F4 about her state of mind when her family had sent her messages about the Decision. In paragraph 34 SIAC described F4’s account (as given by Ms Foa in her first witness statement.) At some point, she had thought that ‘maybe’ her citizenship had been taken away from her, but was not ‘certain’. She did not really understand what that meant, or what an appeal might entail. She could not remember what her mother had told her because she had ‘long-term memory issues’. She had been very ill, which had affected her ‘ability to process information’. She was not in a position to think about anything other than her survival and the survival of her son. She thought that she could return to the issue later once she had found out about the implications for her and for her son. She ‘explicitly stated that she did not intend to give up her right to be a British citizen’. It was only after she had met Reprieve that ‘it was confirmed to her that she had been deprived’. She had been afraid that if she appealed, her son would be taken from her. Lots of women had said that, and it had taken time for her to be reassured that that would not happen.[37]SIAC noted that Ms Foa’s second witness statement (dated 11 May 2023) was filed in response to the Secretary of State’s observation that there was no direct evidence from F4. Ms Foa said that she had interviewed detainees in camps in Syria over hundreds of hours. She described the background and the conditions in the camps, which were ‘particularly dire’ in Camp Al Hol in 2019 when F4 and her son arrived. The camp’s population grew from 9,800 to 73,393 in early 2019. F4 had not been able to give evidence or to review Ms Foa’s first witness statement because channels of communication were ‘extremely limited’ and risky. Detainees are forbidden to have telephones and the punishment for disobedience is potentially severe. Building trust with F4 had taken more time and effort than with many other detainees. She seemed to struggle more than most to understand what the Decision meant, despite reassurance. She was paralysed by the conviction that if she appealed, her son would be taken from her. As a result, Ms Foa had not even got to the point of talking about ‘the timing of her appeal’. By December 2021, Ms Foa thought that ‘the judgment in D4’meant that ‘the timeliness issue was not, in effect, pressing’. The ‘judgment in D4’ means the decision of this court in R (D4) v Secretary of State for the Home Department [2022] EWCA Civ 33; [2022] QB 508.[38]F4 herself raised the issue of separation from her son. It was the main reason she gave for not appealing. She feared that the British authorities might take him if they both returned to the United Kingdom and that the authorities might forcibly repatriate him on his own. Ms Foa understood that F4 feared that any contact with the British authorities might lead to separation.[39]SIAC explained that Ms Foa gave evidence about the details of the VoiceNote messages in her third witness statement. A further exhibit was a briefing note which Reprieve gave to UK Ministers about the repatriation of her son. There was also a medical report by Dr Juliet Cohen. Both those documents were dated 4 December 2019.[40]Ms Foa’s fourth witness statement answered the Secretary of State’s contention that F4 was thinking clearly enough in November 2019 to instruct Reprieve to ask for consular assistance for her and her son. It could be inferred from that, the Secretary of State argued, that in January 2020, she could also think clearly about her possible appeal. Ms Foa explained that the repatriation submissions reflected her wish to return home which she had communicated when she was still a British citizen. The situation was different in January 2020 because of the Decision. By that time, there was a ‘much more complex, confronting and overwhelming scenario for a vulnerable young woman than simply communicating to her family that she wanted to come home’ (paragraph 40).[41]SIAC explained its decision not to extend the time limit in paragraphs 56-88, under the heading ‘Discussion’. It described the issue, in paragraph 56, as whether F4 could show, on the balance of probabilities, that it was more likely than not that the VoiceNotes in January 2020, ‘making it plain that she did not want to appeal…were not the product of a properly-formed decision on her part, and that, consequently, what occurred in 2022 cannot be described as a change of mind…’. The VoiceNotes could ‘hardly be clearer’. Even if it were accepted that F4 ‘may not be particularly proficient in the Somali language, despite growing up with a Somali-speaking mother’, she was saying, ‘in terms’, as early as 6 January 2020, that she did not want to appeal. F4’s reference to ‘god’ in the VoiceNote of 6 January (see paragraph 26, above) was, ‘on its face, a coherent reason for not wishing to appeal’ (paragraph 57).[42]Reprieve’s letter of 9 January was ‘a model of clarity and simplicity’. It explained the high importance of an appeal against the Decision. F4 had about a week to consider that letter. On 16 January she sent her mother a message in Somali which could only have meant that while she did not want to complain about her mother’s pressing her to appeal, she did not want to. On the same day she said, in English, ‘I do not want the British citizenship’. That message was significant for two reasons. First, as it was in English there could be no doubt about her meaning. Second, the expression ‘British citizenship’ (rather than ‘British nationality’) was used three times in the Reprieve letter, including in the form of words for instructing Birnberg Peirce. ‘We find it highly likely that F4’s use of this expression shows that she read’ the whole of Reprieve’s letter (paragraph 59).[43]As a result, F4 faced a ‘significant hurdle’. She had to show that it was more likely than not that the context of the messages was such that she was not ‘expressing a decision based upon any material engagement with the question of whether she should appeal, but, rather, she was in such a mental state’ that she did not understand the significant of the Decision ‘and/or was not prepared to engage with it because all her mental and physical resources were needed to keep her and her son alive in the challenging conditions of the camp’.[44]In paragraph 61, SIAC noted that F4 was not asked about her understanding in January 2020 until 22 October 2022, after she had decided (in June 2022) that she did want to appeal. ‘If her statements in January 2020 had, in fact, represented her freely formed decision not to appeal, then it was plainly’ in her interest ‘in October 2022, to try to overcome that obvious difficulty’. It was therefore necessary to read the relevant material in Ms Foa’s witness statements ‘with some degree of caution’. To accept that later material would require a conclusion that although the VoiceNote strongly suggested that she had read the Reprieve letter, she was ‘not certain’ that her citizenship had been taken from her. Even though her state of mind then ‘may have been very sub-optimal’ it was ‘difficult to understand why, if she was in doubt, she did not express that to her mother and cousin in the messages. Instead, and in marked contrast, the messages exhibit a degree of frustration which a young person may often feel towards a parent who is, in their eyes, badgering them to do something they have decided not to do’ (paragraph 62).[45]In paragraph 63, SIAC identified a contradiction. F4’s case to SIAC was that, in January 2020, she was not able to make a decision, because of her mental and physical state, and worry about her son’s health. Paragraph 40 of the statement, however, described what F4 said about rumours at the time about what would happen to detainees, including their possible transfer to Iraq. The rumours made it harder for her to understand ‘what was actually true’. That suggested someone who was ‘bringing a proper understanding to bear on matters’. If F4 was questioning the accuracy of what Reprieve and her mother were telling her about the United Kingdom Government, ‘this sits most uncomfortably with the suggestion that she was not in the psychological position to engage with the information provided to her about the deprivation of her citizenship’.[46]SIAC pointed, in paragraph 64, to another factor which undermined F4’s case. Paragraph 41 of the witness statement recorded that F4 repeated ‘she had initially been afraid her child would be taken from her’ if she took any steps to appeal. The context was F4’s understanding when her family sent her messages in January 2020, and paragraph 41 therefore ‘entirely’ contradicted F4’s stance in SIAC, and paragraphs 37-39 of Ms Foa’s first witness statement. That position was the VoiceNotes should not be taken at face value because of F4’s mental and physical state in January 2020 (and not because she feared the consequences of appealing). The asserted fear that her son would be taken from her was put forward, instead, to explain the delay between 8 July 2021 and 22 June 2022.[47]SIAC found that any suggestion that, in January 2020, F4 was afraid that, if repatriated, she and her son would be separated on arrival in the United Kingdom was further undermined by the letter dated 24 January 2020 from Birnberg Peirce to the FCO, which threatened an application for judicial review of the decision not to help F4 and her son to return to the United Kingdom. It was written after the Decision had been communicated to F4, and repeated that she wanted to return to the United Kingdom with her son. If F4 had genuinely believed, then, that an appeal could in fact result in separation, it was ‘remarkable’ that she did not tell her mother, or Reprieve (paragraph 65).[48]On the state of the evidence, SIAC concluded that F4 had failed to show, on the balance of probabilities, that her VoiceNote messages in January 2020 should not be taken at face value, representing ‘a considered decision not to appeal’ against the Decision. SIAC should not be understood as minimising the conditions in the camp, nor as minimising her son’s problems in the camp, or her ‘natural concern’ about him. The supporting and background evidence did not ‘begin to resolve the problems with paras 36-42 of Ms Foa’s first witness statement, when read against the VoiceNote records, especially those of 6 January 2020’ (paragraph 78).[49]Even if F4 could get over the VoiceNote messages, and ‘if one ignores the period of apparent silence between January 2020 and July 2021’, SIAC was not satisfied that F4 had shown, on balance, that there was ‘a satisfactory reason for her to delay’ appealing until June 2022. SIAC referred to paragraphs 27 and 28 of Ms Foa’s first witness statement. Unlike the generality of detainees, F4 did have access to legal advice. She had been advised by Reprieve since 2019. SIAC was ‘entirely satisfied’ that F4 had understood Reprieve’s January 2020 letter. She had indirect access to Birnberg Peirce, via her mother, with whom F4 communicated by telephone (paragraphs 79 and 80).[50]There was a fundamental contradiction in the evidence of F4 as relayed by Ms Foa. Paragraph 30 of her first witness statement recorded a meeting with F4 on 10 July 2021. In that meeting F4 gave authority for Reprieve to help her with welfare and repatriation services (see paragraph 33, above). The terms and effect of the authority were clear. F4 had acknowledged that she understood that document. Yet F4’s claimed fear was that, once she was in the United Kingdom, she and her son would be separated. It was ‘simply not credible’ that F4 could, on the one hand, have given that authority, and on the other, have refused to appeal the Decision because it might involve separation from her son (paragraph 81).[51]SIAC said that there were only three possibilities. First, Ms Foa’s recollection might be incorrect, and F4 did not draw any such distinction. That was unlikely, ‘given that F4’s asserted reluctance continued for almost a year’. Second, F4 might have said this to Ms Foa, but not have genuinely believed that an appeal would have those consequences. That was possible but could not be attributed to F4’s ‘brain fog, or any other similar cognitive disorder, such as is alleged…in January 2020’. In any event, that was not F4’s case. SIAC then referred to two factors. First, in paragraph 83 of her second witness statement Ms Foa said that she believed that F4 was afraid both that the British authorities might take her son on their return to the United Kingdom and that they would forcibly repatriate him without her. Second, the terms of the July 2021 authority were so inconsistent with F4’s alleged fear of appealing ‘as to make it appear that her alleged fear was not genuine’ and could not satisfactorily be explained by her mental state. Those two factors meant that ‘F4’s motivation must lie elsewhere’. SIAC declined to speculate what that motive might be, adding that ‘it cannot assist F4’s case’ (paragraph 81).[52]The third possibility was that despite the advice she had been given, and despite the ‘obvious illogicality’ of giving the authority, F4 genuinely believed, and believed until June 2022, that there was ‘some relevant danger in appealing’. SIAC again took into account F4’s circumstances, and all that she ‘had experienced and had had to deal with’ over the past two years. ‘Even so, it was plainly entirelyunreasonable for F4 to maintain that stance. If the third possibility contains the explanation for F4’s conduct, it is, therefore, not areasonable explanation’ (paragraph 82) (my emphasis).[53]If anything, F4’s position became ‘even more problematic’ in December 2021, when she said that she needed ‘more time to make up her mind’. The appeal was understood to be well out of time by then, so it did not matter whether Ms Foa told, or should have told, F4 that the appeal needed to be brought quickly. But F4’s dilatoriness was not explained by any knowledge of the judgment in D4 (see paragraph 37, above), and could not be excused by reference to it (paragraph 83).[54]In paragraph 84 SIAC indicated that it was inclined to reject the Secretary of State’s argument that the delay between 28 June 2022 and 24 August 2022 could not be excused because it was the fault of a solicitor at Birnberg Peirce, who had not appreciated the effect of section 10 of the 2022 Act, even though Birnberg Peirce had advised D4. That did not help F4, however, because even if that period were ignored, ‘there is no satisfactory explanation for the delay from January 2020 to June 2022, which in its own terms was extremely long’.[55]In paragraph 85, SIAC asked itself whether there were other relevant factors which might mean that there were special circumstances making it unjust not to extend time. The fact that deprivation of citizenship engaged fundamental rights did not mean that it should be given ‘overriding weight’. It ‘must still be balanced against the issues we identified earlier, when discussing C12’. SIAC could not at that stage take a view of the substantive merits of the appeal. They could therefore play no part in the exercise. SIAC accepted that if time were not extended, there would be ‘no prospect’ of F4’s keeping her British citizenship, and she would therefore lose ‘her only realistic hope of returning to the United Kingdom with her son’. Their futures would be ‘extremely uncertain’ (paragraph 86). SIAC accepted all those points, and repeated that the fact that F4 was one of many ex-British citizens in camps in Syria did not prevent her from showing that there were ‘special circumstances’ in her case (paragraph 87).[56]She had ‘failed to show a reasonable explanation for the extreme delay we have described’ (my emphasis). She had failed in what her counsel had rightly identified as ‘the central matter; namely the context of the communications from F4 in January 2020’. In her reply at the hearing, counsel had submitted that what F4 had said in January 2020 was ‘equally consistent with’ the evidence of Ms Foa and Professor Patel. ‘Being equally consistent, however, does not discharge the burden of proof on F4. In fact, the problems we have with the evidence are such that F4 fails by a far greater margin’ (paragraph 88). In paragraph 89 SIAC said that it had considered exculpatory material relating to F4’s health in its CLOSED judgment. For the reasons in that judgment, that material did not help F4. In the event, SIAC did not extend the time limit (paragraph 90).

The medical evidence

[57]In paragraphs 41-7 and 48-51, 52 and 53-54, SIAC summarised the evidence of the experts for F4 and for the Secretary of State, Professors Patel and Greenberg, which considered F4’s likely psychological condition at the relevant times. In paragraphs 66-74 and 76-77, SIAC explained why it did not get any help from Professor Patel’s evidence. F4 sought to challenge this conclusion in ground 4 of her grounds of appeal. I refused permission to appeal on ground 4. It is necessary, nevertheless, to say something about this part of the judgment, because F4 relies on it in support of ground 3.[58]Professor Patel wrote three reports. The first was a ‘preliminary psychological report’ about F4 based on information given to her by Reprieve. She also interviewed F4’s mother. She had read two reports by Dr Cohen, Ms Foa’s first two witness statements and the 20 January letter from Reprieve. She qualified her first witness statement by saying that she had not met F4, or spoken to her, and had not reviewed her medical records. She could not, therefore give ‘a detailed psychological or mental health evaluation’.[59]Professor Patel nevertheless speculated about various ‘adverse life experiences in childhood’, F4’s chronic asthma, her likely relationship with her mother, and the impact of these factors on F4’s psychological development, and possible psychological difficulties (paragraph 44). The hardship she had endured at H’s hands was likely to have had a severe and lasting psychological effect. The view of Professor Patel was that when F4 sent the VoiceNotes in 2020, F4 ‘was still in a state of trauma and grief and in survival mode’. It was ‘highly clinically plausible’ that F4’s emotional and psychological state stopped her from engaging with the Decision, or an appeal. Professor Patel also suggested that ‘traumatic brain injury’ might be relevant. She thought that F4’s account, as given in Ms Foa’s two statements, was ‘highly clinically plausible’. However clear Reprieve’s letter was, it was also ‘highly plausible’ that F4 would not have been able to process it, without repeated ‘in-person discussions’ (paragraph 45).[60]F4’s fear for her son, given the ‘mother-child bond’ was ‘likely to be genuine and highly clinically plausible’ in the light of her apparent psychological state and earlier experiences. Whether or not the fear was objectively realistic, ‘psychologically, the perception of threat was a key feature of trauma’ (paragraph 46). F4’s account of not appealing earlier was ‘highly clinically plausible’ (paragraph 47).[61]Professor Greenberg was instructed by the Secretary of State. He remarked on the express limits on the information Professor Patel had. He observed, in relation to her ‘generally negative assessment of F4’s life in London’ that Reprieve’s briefing to Ministers described F4 as ‘a bubbly and sociable kid who was open and warm hearted with others’. It said that F4 had been raised in London by her mother, to whom she was ‘very close’ (paragraph 48). He considered that several limitations substantially affected the validity of Professor Patel’s conclusions. She relied heavily on information from Reprieve, which was ‘highly likely to have been presented’ so as to support F4’s appeal; although he recognised that that was a question for SIAC. He accepted that childhood adversity could have an effect on mental health and vulnerability, but pointed out that Professor Patel had failed to elicit essential information from F4’s mother to help form a balanced view of F4’s state of mind before she went to Syria. She had enrolled on a college course, which suggested ‘a degree of motivation or parental influence’ even if F4 had later dropped out. If F4 had grown up in a stable and loving home, that would substantially have mitigated any childhood adversity. Professor Patel’s report did not properly explore what F4’s childhood had really been like (paragraph 49).[62]Despite the hardships, F4 had kept herself and her son alive in ‘highly challenging circumstances’. That suggested to him that F4 was ‘functioning to a reasonable level’. If she had been severely depressed, that ‘would have been likely to have substantially affected her ability to function, with consequential effects on her ability to stay alive’. The VoiceNotes did not suggest that F4 was ‘hopeless about her future, unable to function or unable clearly to express her views that she did not want’ to appeal (paragraph 50).[63]Professor Patel had not explained how someone who was impaired cognitively had nevertheless kept herself and her son safe in very difficult circumstances. She had shown resilience and determination to escape a violent and abusive marriage. Professor Greenberg’s overall view was that Professor Patel’s report was ‘highly speculative’. Its limitations were acknowledged, but it was very heavily based on the reports of Ms Foa and on the interview with F4’s mother which only focused on the negative aspects of F4’s upbringing (paragraph 51).[64]In paragraph 52, SIAC referred to Professor Patel’s second report, which considered the VoiceNotes. They did not change her view that it was ‘highly clinically plausible’ that F4’s psychological state had stopped her from engaging with the material and making an informed decision. That view was reinforced by the messages of 24 December 2019.[65]Professor Patel filed a third report to respond to Professor Greenberg’s report. When she interviewed F4’s mother, many of her questions were met with silence and tears. In her ‘professional opinion’ F4’s mother was not then able to say more. This had been their first meeting and it had been short. She accepted that maternal love and support would have helped F4’s psychological development, but considered it ‘speculative’ to suggest on the balance of probabilities that it would have ‘substantially mitigated the adverse effects of her early life adversities’ (paragraph 53). The VoiceNote seemed to show that F4 had engaged with her family about an appeal and had not avoided talking about it. Nevertheless, Professor Greenberg had a ‘different, and what I consider to be a simplistic, and literal, interpretation of what constitutes avoidance in psychological understanding, theory and practice’ (paragraph 54).

SIAC’s approach to the medical evidence

[66]In the first sentence of paragraph 66, SIAC said that Professor Patel’s evidence did not materially help F4. The title of her ‘first and primary report’ showed that her opinion was ‘provisional’ and ‘preliminary’. The report explained the limitations which meant that it was provisional and preliminary. SIAC summarised its many limitations (see paragraph 58, above). A further limitation was that Professor Patel had to rely on the recollections of Ms Foa, ‘extending back several years, of what F4 told Ms Foa was her physical and mental state, both in January 2020 and in the period leading up to it’. The result was that Professor Patel’s most significant findings were expressed as findings of ‘clinical plausibility, albeit of a high order’, as was her conclusion that the overall account of F4’s reasons for not appealing was ‘highly clinically plausible’.[67]SIAC pointed out in paragraph 67 that Professor Patel’s findings ‘presuppose’ not only that that record of F4’s statements was more likely than not to be true, but also that F4’s account was more likely than not to be true. ‘We have already explained why there is good reason to doubt the genuineness of F4’s account of her thoughts and feelings in January 2020’ (in paragraphs 61-65: see paragraphs 44-47, above). It is important to emphasise that SIAC was referring there to the account of her feelings in January 2020, which according to Ms Foa, F4 had given in October 2022. SIAC added, ‘Quite apart from that’ Ms Foa’s accounts were her attempts to remember, up to 17 months after the event, what F4 had said to her. She did not refer to using notes to help her remember. SIAC had asked whether there were any notes. Counsel had to take instructions. Ms Foa had used notes but could not say whose notes they were. They were taken by Reprieve and never shared with anyone, including lawyers. That policy was understandable, but it enabled the Secretary of State to rely on the contrast between Ms Foa’s account and F4’s actual words in 2020 as recorded in the VoiceNotes.[68]In addition to the intrinsic limitations of Professor Patel’s reports, SIAC accepted some of Professor Greenberg’s criticisms of them. Her inferences about F4’s early life were based ‘to an impermissible extent’ on the interview with F4’s mother. Four pages of the report covered F4’s early life. SIAC summarised those in paragraphs 68-69. One of Professor Greenberg’s criticisms was that Professor Patel did not seem to have elicited essential information from F4’s mother to enable her to reach a balanced view of F4’s mental state before she had gone to Syria. Professor Patel’s response in her third report was to give an account of her interview of F4’s mother (see paragraph 65, above). The interview was short and F4’s mother was ‘distressed throughout’. SIAC considered that Professor Patel should have put this information forward sooner. Her failure to do so ‘cast doubt on the reliability of’ the first report, particularly as she herself had emphasised the dangers of listing positive and negative factors, rather than addressing ‘the complexity of human experience based on available information’. The nature of the interview limited Professor Patel’s ability to address the ‘complexity’ of F4’s relationship with her mother. Professor Patel should have made that clear in her first report (paragraphs 70 and 71).[69]In paragraph 72 SIAC rejected counsel’s attempt to deflect criticism of Professor Patel. F4’s case was not that her cognitive impairment started in the United Kingdom, but was caused by her experiences in Syria. SIAC acknowledged that Professor Patel referred to cognitive impairment [that is my interpretation: I think that a ‘not’ is missing from the relevant sentence] but that had not been her approach in her report. She had also relied on negative aspects of F4’s childhood ‘formed from her conversation with F4’s mother’ as relevant to F4’s state of mind in Syria.[70]Further doubt was cast on F4’s ‘asserted mental state’ by material sent by Reprieve to the FCO in connection with the repatriation request. That material described the physical conditions of F4 and of her son. There was no reference to any concerns about F4’s mental state. Despite the asserted difficulties in communicating with F4, there was much detail about their conditions. There was a medical report from Dr Cohen which described F4’s physical symptoms. The report suggested that she was suffering from many vitamin and mineral deficiencies. Those can affect cognitive function. That aspect of the report served ‘to emphasise the lack of any suggestion by the United Kingdom relatives to Reprieve or Professor Patel that, in their interactions’ with her they thought that she was showing any such signs (paragraph 73).[71]That material also painted a significantly different picture of F4’s life in the United Kingdom from that painted by Professor Patel, for the reasons SIAC gave in paragraph 74.[72]The FCO’s ‘NGO partners’ visited F4 in the camp on 13 December 2019. They did not identify any issues with her mental health, but described her physical symptoms and those of her son, and the immediate medical help which they were both then given. They were also given winter clothes. Arrangements were made the next day to get a separate tent for them.[73]In paragraph 77, SIAC acknowledged that the information it had was limited. It nevertheless strongly suggested that Dr Cohen’s concerns about vitamins were addressed. Even if Dr Cohen had not seen F4 personally (whether she had was not clear on the evidence), SIAC would have expected the NGO’s staff to have noted any concerns about F4’s mental health, such as any problems in their communication with her and hers with them.[74]In paragraph 75, SIAC accepted the Secretary of State’s submission that in the light of the limitations of the evidence of Ms Foa and Professor Patel, it was ‘significant’ that there were no witness statements from F4’s mother, or her cousin. ‘They would plainly have had relevant light to shed upon matters from the summer of 2019 until January 2020’.

The grounds of appeal

[75]F4 asked for permission to appeal on four grounds. I gave permission to appeal on the first three. I refused permission on the fourth. i. SIAC erred in failing to decide what F4’s explanation for the delay was and in failing to decide whether, in the light of that explanation, it would be ‘unjust’ not to extend time (ground 1). ii. SIAC erred in deciding that a genuine explanation (F4’s fear that she would be separated from her son if she appealed), that is, conduct which is objectively unreasonable, cannot amount to a satisfactory explanation for delay (ground 2). iii. SIAC erred in rejecting F4’s evidence about her state of mind before considering the evidence of her expert, rather than considering her evidence and the expert evidence together (ground 3). This was referred to in argument as ‘the Mibanga error’ (from Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367; [2005] INLR 377). iv. SIAC erred in rejecting the evidence of Professor Patel about F4’s state of mind in January 2020. The limitations on which SIAC relied as reasons for rejecting that evidence were expressly acknowledged by Professor Patel, and she took them into account. SIAC also criticised her for not describing, in her first report, all the questions which she had asked F4’s mother about the first period of delay. It was wrong to do so when the Secretary of State had not made that point in his skeleton argument or oral submissions without giving Professor Patel a chance to comment (ground 4).

The submissions

[76]Mr Squires submitted that, as F4’s fundamental right to citizenship was at issue, this court should anxiously scrutinise SIAC’s decision. In practice, that meant that if we were in any doubt about SIAC’s approach, or if there was any ambiguity in its reasoning, we should give the benefit of that doubt to F4. He emphasised how terrible the consequences for F4 and her son would be if she lost her British citizenship, suggesting (incorrectly, as he very soon acknowledged) that she does not speak Somali, the language of the country, Somalia, of which she is still a citizen. The consequences to her, he reminded us, were one of the bases on which she had been given permission to appeal to this court.[77]The parties agreed that the approach in C12 is correct. On the facts, C12’s case had been that he did not know about the decision, and SIAC had not accepted his case, which meant that he had no explanation for the delay.[78]Mr Squires suggested that it was fairly clear that F4 was a victim of trafficking. She had gone to Syria when she was 17 and had been compelled to marry an adult man. The conditions in Camp Al Hol were appalling. He referred us to Dr Cohen’s report for the terrible condition F4 was in. He agreed that Reprieve’s letter was a ‘model of clarity and simplicity’. He accepted that SIAC had found that F4 had read the whole letter. For a time, she had very much wanted to come home.[79]The obvious question was why, having read the clear letter, F4 did not appeal. SIAC did not answer that question. It was significant that during the later meetings with Reprieve, F4 repeatedly expressed a fear of being separated from her son if she appealed. She only felt able to appeal in June 2022. SIAC found that she wanted to return to the United Kingdom and that she authorised Reprieve to take steps about repatriation in July 2021. Yet, despite being encouraged to appeal, she did not do so.[80]Mr Squires took ground 1 (see paragraph 75, above) first. SIAC was bound to find what the explanation for the delay was. Three had been relied on. The first was ‘brain fog’: she could not understand that her citizenship had been removed. The second, which emerged from the evidence of Professor Patel, was that she was ‘frozen’ or ‘overwhelmed’: she understood what she needed to do, but could not do it. The third explanation was that she was afraid that if she appealed, her son would be removed. He submitted that SIAC erred in law in its approach to each explanation.[81]It had erred in law in rejecting a plausible psychological explanation. F4 had suffered many traumas in the previous six years. The conditions in the camps were appalling. SIAC erred in law in finding that F4 understood what she needed to do in January. It had made what he referred to as the ‘Mibanga’ error (ground 3). SIAC had reached a view on the credibility of her account without taking into account relevant expert evidence. It could only have reached a view about the credibility of her account after considering how her credibility was affected by the expert psychological evidence.[82]He argued that SIAC’s approach was based on a view that F4 had acted inconsistently, incoherently, and contrary to her own best interests. That was wrong. SIAC should have asked itself, and found, why she had acted as she had. The finding that F4 knew, in time, that she should appeal, and how to appeal, was not an end of the enquiry. The obvious question was why she did not act despite that knowledge. SIAC erred in law in not answering that question. F4 had put forward an explanation and SIAC was obliged to make findings about it. Had SIAC considered the psychological explanation (that she was frozen) there was every chance that SIAC would have accepted it; so the error was material.[83]On ground 2, Mr Squires reminded us that SIAC had identified three possibilities in paragraphs 81-82 (see paragraphs 51-52 above). The effect of its decision was that an unreasonable explanation could not make it unjust to extend time; which was wrong in law. A belief, if genuine, would amount to an explanation which merited an extension of time.[84]I have already somewhat anticipated his submissions on ground 3 (see paragraph 81, above). The high point of those submissions is the sentence in paragraph 67 (see paragraph 67, above) in which SIAC referred to the doubts which it had already expressed about F4’s account. Mr Squires submitted that that sentence showed that, contrary to the reasoning of this court in Mibanga, SIAC had pre-judged F4’s credibility without considering her credibility against the medical evidence, which gave a ‘highly clinically plausible’ explanation for F4’s conduct.

Discussion

[85]In her skeleton argument, F4 was careful to make clear that she was not challenging ‘SIAC’s underlying or primary factual findings’. Three issues, in short, are raised by the grounds of appeal. i. Was SIAC obliged to make a finding of fact about why F4 did not appeal before June 2022 before it could lawfully consider whether it was unjust not to extend the time for appealing? ii. Did SIAC err in law in holding that an explanation which is objectively unreasonable cannot justify the exercise of its discretion to extend time? iii. Did SIAC make the ‘Mibanga’ error?[1]Did SIAC err in law in not making a finding about F4’s reason for not appealing until June 2022?[86]F4 accepted that the approach to extending time in C12 was correct. So SIAC was right to ask, initially, whether F4 had shown that she had any explanation for not appealing in time, and to ask, if so, whether she had shown that it was a ‘satisfactory’ explanation. SIAC analysed the evidence carefully. It was entitled to decide that F4 knew all that she needed to know in order to appeal in time and had made a conscious decision not to appeal. I accept Mr Blundell’s submission that SIAC was not obliged to go further and to make a finding about F4’s real reason for not appealing until June 2022.[87]Once SIAC had made its finding about F4’s unequivocal conduct in January 2019, F4’s explanation for not appealing after the expiry of the time limit was irrelevant. A finding about that explanation required a different inquiry from the starting point in C12. SIAC was not required to speculate about why she had not decided to appeal until June 2022. Such an inquiry would not have helped SIAC to decide the express question posed by rule 8(5). On SIAC’s findings, the facts of this case and of C12 (see paragraphs 6 and 7, above) are similar. Both appellants knew, in time, that the relevant decision had been made, they knew how to appeal, and chose not to. Neither had shown that he or she had any, let alone a satisfactory, explanation for not appealing in time. In both cases, SIAC rightly refused to extend time. I would dismiss ground 1.[2]Did SIAC err in law in holding that an explanation which is objectively unreasonable cannot justify the exercise of its discretion to extend time?[88]SIAC directed itself in accordance with C12. It understood, therefore, that a relevant issue was whether the appellant had shown that there was a ‘satisfactory’ explanation for any delay (see paragraph 19(2) of C12, which I quote in paragraph 8, above, and which SIAC accurately summarised in paragraph 6). SIAC also used the word ‘satisfactory’ in paragraphs 79 and 84. SIAC therefore understood what the law was.[89]The premise of this ground is that SIAC held that an objectively unreasonable explanation cannot justify an extension of time. The high point of F4’s argument is SIAC’s use of words in paragraphs 82 (which I have italicised: see paragraph 52, above), and in the summary in paragraph 88 (see paragraph 56, which I have also italicised). F4 accepts, because she accepts the reasoning in C12, that she had to show a satisfactory explanation for her delay. The first point is that there is not much difference in meaning, in this context, between an explanation which is ‘satisfactory’ and an explanation which is ‘reasonable’. F4 accepts that SIAC used ‘reasonable’ as a synonym for ‘satisfactory’ (skeleton argument, paragraph 52.3). Indeed, the implication of SIAC’s strong words in paragraph 82 was that, if the possible explanation described by SIAC in that paragraph was F4’s explanation for the delay, she had not only failed to show a satisfactory explanation, but her explanation was also ‘plainly entirely unreasonable’.[90]Second, the context of paragraph 82 is significant. SIAC was not, in that paragraph, considering the first, crucial period of delay, or even F4’s explanation for the later delay. SIAC was, instead, commenting on the apparent contradiction between F4’s giving Reprieve authority on 10 July 2021 to ask for her repatriation, and her refusal then to give instructions for an appeal because she was said to fear that an appeal would lead to her separation from her son. SIAC identified three possible explanations for that contradiction. The third possibility was that she genuinely believed that there was ‘some relevant danger in appealing’. Such a stance was ‘plainly entirely unreasonable’, and not a ‘reasonable explanation’ for her conduct.[91]I do not consider, therefore, that when the judgment is read as a whole, SIAC is to be understood as having directed itself that it could not extend time for appealing unless F4 persuaded it, on the balance of probabilities, that she had an objectively reasonable explanation for not appealing in time, still less that SIAC should be understood as having decided that in order to succeed, F4 had to show that she had an explanation for her delay which was plainly entirely reasonable. There is no trace of such reasoning in the earlier part of the judgment. In paragraph 82, SIAC was simply saying that the third possible explanation for that contradiction, was (if it was the explanation) not a remotely reasonable explanation, on the facts, for the significant delay in appealing. If it was not remotely reasonable, it could not be satisfactory.[92]F4 might be thought to be on stronger ground in relying on the first sentence of paragraph 88, to the extent that paragraph 88 is a summary of SIAC’s conclusions. But, third, it does not follow that SIAC was saying that, because F4 had acted unreasonably, it could not extend the time for the appeal. I do not consider that that was SIAC’s approach, for the reasons I have already given. In any event, the first sentence of paragraph 88 introduces the rest of the paragraph. The focus of that paragraph is the important initial period in which F4 knew about the Decision, knew how to appeal, and chose not to. In relation to that period, F4 had ‘failed in what Ms Mitchell identified was the central matter’. F4 had not only failed to show that she had a ‘reasonable’, or ‘satisfactory’ explanation for her delay: she had not shown that she had any explanation, because she had deliberately made an informed choice not to appeal.[93]I would dismiss ground 2.[3]Did SIAC make the ‘Mibanga error’?[94]The appellant in Mibanga, a citizen of the Democratic Republic of Congo (‘the DRC’),appealed to an adjudicator against a decision of the Secretary of State refusing his claim for asylum. He claimed to be a member of a Mai-Mai militia and to have been detained for about three years and tortured by rebel forces, backed by Rwanda, the RCD-Goma, with which the Mai-Mai militia were at war (see paragraph 5 of the judgment of Wilson J (as he then was), with which the other members of this court agreed). In support of his account, he relied on reports from two experts. The report of one gave information about the conflict in the DRC, conditions in the detention camps run by the RCD-Goma, and safety on return to the DRC. The other report gave an opinion about the likely causes of most of his scars. In her determination the adjudicator made ‘extremely forceful’ findings that various facets of the appellant’s account were incredible (summarised in paragraph 15 of Wilson J’s judgment), without taking the experts’ reports into account. She referred to the medical report, but only after she had reached most of her adverse conclusions, and in order to advance her own theory, for which there was no evidence, about the causes of the appellant’s scars. As Wilson J noted, those reports were capable of supporting the appellant’s claim in various respects.[95]In paragraph 24 of his judgment, Wilson J said: ‘It seems to me to be axiomatic that a fact-finder must not reach his or her conclusion before surveying all the evidence relevant thereto. Just as, if I may take a banal if alliterative example, one cannot make a cake with only one ingredient, so also frequently one cannot make a case, in the sense of establishing its truth, otherwise than by combination of a number of pieces of evidence. Mr Tam, on behalf of the Secretary of State, argues that decisions as to the credibility of an account are to be taken by the judicial fact-finder and that, in their reports, experts, whether in relation to medical matters or in relation to in−country circumstances, cannot usurp the fact-finder’s function in assessing credibility. I agree. What, however, they can offer, is a factual context in which it may be necessary for the fact-finder to survey the allegations placed before him; and such context may prove a crucial aid to the decision whether or not to accept the truth of them. What the fact-finder does at his peril is to reach a conclusion by reference only to the appellant’s evidence and then, if it be negative, to ask whether the conclusion should be shifted by the expert evidence’.[96]Wilson J held that the adjudicator’s treatment of the reports of both experts was wrong in law (paragraphs 25 and 26). The court allowed the appeal and remitted the case to a different adjudicator.[97]We were also referred to Jakto Transport Limited v Hall [2005] EWCA Civ 1327. In that case the claimant was awarded damages for personal injuries caused when he had an accident using a torque wrench to tighten the wheel nuts on his employer’s lorry. The judge had made ‘preliminary’ findings about the evidence of the lay witnesses before considering the report of an expert engineer, and whether it should cause him to change his preliminary findings. This court held, in short, that that was the wrong approach. The judge should, instead, have considered all the evidence in the round before making any findings of fact, whether preliminary or final. Smith LJ, who gave the leading judgment, referred, in paragraph 29, to the decision in Mibanga. The court nevertheless (with understandable hesitation expressed by Pill LJ, and by Carnwath LJ, who shared those doubts) decided to make the decision again, and upheld the result reached by the judge.[98]The starting point for ground 3 is that there are at least two differences between this case and Mibanga and Jakto. In this case, first, SIAC had the evidence of Professor Patel, and of Professor Greenberg. So Professor Patel’s expert evidence was not the only expert evidence which SIAC had. Second, SIAC considered her evidence carefully and gave cogent reasons for deciding that it did not help F4. So unlike the expert evidence in Mibanga or Jakto, the expert’s evidence in this case was both challenged by another expert evidence and found, for the detailed reasons SIAC gave, not to help F4.[99]I do not consider that either Mibanga or Jakto binds this court to hold that SIAC could not, as a matter of law, make relevant findings in this case unless it took Dr Patel’s evidence into account in F4’s favour. It was not obliged to take into account evidence in F4’s favour evidence which it had analysed and found to be unpersuasive. On the contrary, in the light of its analysis of that evidence, it could not rationally have given it any weight.[100]The differences between this case and Mibanga do not necessarily mean that ground 3 fails, if SIAC’s approach to the credibility of F4’s account was nevertheless flawed. Whether it was flawed depends on two main challenges to SIAC’s reasoning. The first is whether, in paragraph 66, SIAC was pre-empting any analysis of the merits of Professor Patel’s evidence by its statement that F4 could not get any material help from that evidence. The second is whether the sentence in paragraph 67 on which Mr Squires relies (see paragraph 67, above) shows that SIAC made the linked errors of making a definitive decision on the credibility of F4’s evidence without considering that of Professor Patel, or based its view of Professor Patel’s evidence on that pre-emptive conclusion about the credibility of F4’s account. For the reasons I give in the next four paragraphs, I accept Mr Blundell’s submission that allowances must be made for the order in which an expert tribunal expresses its reasons, and that this court should not readily detect errors of law by taking isolated passages from their context in the reasons as a whole (see, for example, AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] 1 AC 678).[101]I also accept Mr Blundell’s submission that the judgment is careful and detailed and that SIAC did not hide from the difficulties experienced by F4 and her son in the camps. The two main challenges to the judgment which I have summarised in the previous paragraph misrepresent SIAC’s careful and holistic approach to the evidence.[102]In the ‘Discussion’ section of the judgment, SIAC considered the lay evidence about F4’s state of mind in January 2020 in date order. As it did so, it expressed provisional views about it (in paragraphs 57-65). It expressed doubts about the extent to which that material could displace the unequivocal contemporaneous evidence of the VoiceNotes and the inferences which SIAC drew from those. SIAC did not, in that sentence in paragraph 67, express a concluded view about F4’s credibility. It did not say that Professor Patel’s evidence was based on material which it had already decided was not credible. What it did, instead, was to refer to the ‘doubts’ which had it already expressed about the material with which F4 had tried to displace the effect of the VoiceNotes. SIAC had not, in any of those paragraphs, made a definitive finding about the credibility of F4’s retrospective account of her reasons for not appealing in January 2020.[103]SIAC then also referred, in paragraphs 68-77, to further problems with the evidence of Professor Patel. It is true that, in paragraph 66, SIAC announced that Professor Patel’s evidence did not materially help F4. That sentence is not to be interpreted, however, as showing that SIAC had prematurely closed its mind. If that were so, there would have been no need for the next 13 paragraphs of the judgment, in which SIAC gave further reasons, supplementing the report’s intrinsic limitations (see paragraphs 42 and 66) which explained why F4 got no material help from the evidence of Professor Patel.[104]SIAC did not, contrary to the suggestion made by ground 3, look at the evidence in rigid and separate boxes. It considered all the evidence in the round, and reached a balanced conclusion on it. That conclusion was plainly open to it. I would dismiss ground 3.

Conclusions

[105]For those reasons, I would dismiss F4’s appeal.[106]I agree.[107]I also agree.