Modhavadiya, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 1633 (Admin)

[2008] EWHC 1633 (Admin)Case No CO/8020/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 18th June 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE SULLIVAN
Between
THE QUEEN ON THE APPLICATION OF BHAVNABEN ARABHAMBHAI MODHAVADIYAClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Benjamin Hawkin (instructed by Messrs Morgan Hall) appeared for ClaimantMr Stephen Whale (instructed by the Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE SULLIVAN: This is a renewed application for permission to apply for judicial review of a decision of an immigration judge refusing to extend time in a decision on a preliminary issue as to timeliness under the Asylum and Immigration Tribunal (Procedure) Rules 2005.[2]The background to the matter, very briefly, is that on 10th March 2005 the claimant was granted leave to enter the United Kingdom for two years as the spouse of a British citizen. She came to the United Kingdom the following month. Her leave was due to expire on 10th March 2007 and so on 6th March she submitted an application for indefinite leave to remain as a spouse. That was refused on 4th April 2007 on the basis that she had failed to show that the marriage was subsisting and that the parties intended to live together as husband and wife.[3]The decision to that effect was accompanied by an appeal form. The notice said that the claimant had a right of appeal and it said that a notice of appeal was enclosed, which explained what to do. Under the heading "One-Stop Warning - Statement of additional grounds", the notice said that the claimant had to make a formal statement about any reasons why she thought she should be allowed to stay in the country and it added:
"The statement should be made on the form NOTICE OF APPEAL if you are appealing this decision. If you are not appealing but have further reasons you wish us to consider you should send them to reach us within the next 10 working days (5 working days if you are detained)."
[4]The notice of appeal in section 2 tells those who wish to appeal what the deadlines are. In this case it was ten business days from the date that the claimant was served with the decision (because she was not detained) and it says:
"Your appeal must be received by the Tribunal by the end of this period. If you know your appeal is late, or if you are not sure your appeal will be received by the deadline date, you must apply for an extension of time, and give your reasons for failing to submit your appeal in time, in the box."
[5]What happened after the adverse decision was received by the claimant was that she submitted further representations to the Secretary of State and, on 8th June 2007, the Secretary of State wrote to the claimant saying that the decision of 4th April 2007 was being maintained. The claimant then instructed solicitors and on 22nd June the AIT received the claimant's notice of appeal. In the box in section 2, which invites those who know or think that their appeals may be out of time to give reasons, the following was stated:
"1. The application was refused on 10/05/2007. The applicant made further written representations on 14/04/2007 to the Home Office. 2. On 8/06/2007 the Home Office did not review their decision and maintained their initial refusal. 3. 10 working days from 8/6/07 is 22/06/07. Last date to lodge appeal."
That was the only explanation provided for the assistance of the immigration judge in deciding whether or not it was appropriate to grant an extension of time.[6]The immigration judge's decision commences by saying:
"By Notice of Appeal signed and dated 22nd June 2007 the Appellant seeks to appeal the Respondent's decision dated 4th April 2007 refusing to vary the Appellant's leave to remain in the United Kingdom as the spouse of a British citizen."
The provisions of the rules are then set out and the immigration judge then concluded that the appeal was out of time and that conclusion is not challenged.[7]The immigration judge set out the relevant law and there is no criticism of the self direction as to that. In particular, it is important to note that the immigration judge specifically refers to BO and Others (Extension of time for appealing) Nigeria [2006] 00035, an AIT decision which sets out, as the immigration judge said, the principles to be followed in considering an out of time application. The immigration judge said that BO stated that the starting point must be the explanation for the appeal being out of time. He set out the explanation that had been given in the box in section 2 of the form, and continued:
"7. I am satisfied that the Appellant would have been aware of the time constraints for the appeal as these are set out in the body of the decision notice. They also appear in the margin notes in the appeal form. It was for the Appellant to arrange for the despatch of appeal forms to ensure that they were received by the AIT or the British High Commission on or before the deadline date. The Appellant has failed to establish an explanation for the delay to the standard of proof required of her. 8. I am satisfied that the correct deadline date for this appeal is the 24th April 2007. The Appellant has already received a refusal of her application. It was incumbent upon the Appellant to submit her notice of appeal against the original decision within the deadline date even if she later submitted further representations to the Home Office. The true deadline date for submitting the notice of appeal is therefore the 24th April 2007 and not the 22nd June 2007 as claimed or at all. 9. As set out above the Appellant has failed to provide an acceptable explanation for the delay. I am satisfied that this appeal does not fall within the category as outlined in paragraph 5 above [that is a reference to where there is some explanation for the delay]. It is in any event open to the Appellant to reapply for entry clearance as a spouse if she so chooses. I am satisfied there is no basis upon which I can properly exercise my discretion under Rule 10(5) by enlarging time."
[8]In these proceedings, that decision is criticised by Mr Hawkin on a number of grounds but central to the submission is the proposition that when the claimant received the decision notice dated 4th April 2007 she did not have the benefit of legal advice and that she interpreted the words in the notice, "If you are not appealing but have further reasons you wish us to consider you should send them to reach us within the next 10 working days", as giving her the option of making representations to the Secretary of State instead of appealing straightaway; ie that her right of appeal within ten days would run as from the date when her further representations had been considered by the Secretary of State.[9]The answer to that criticism of the immigration judge's decision is that the case of BO emphasises the need for any application for an extension of time to be properly supported by evidence: see paragraph 19 of the decision. The short point is that this application for an extension of time was not properly supported by evidence. The immigration judge was fully entitled to say that the explanation given in three short paragraphs in the box in section 2 of the form was not an effective explanation for the delay. It did not state that the applicant had been misled in any way by the form and there is no evidence that applicants generally are misled by that particular passage on the form and falsely led to assume that they need not appeal within ten days if they make further representations. It is important to bear in mind that by this stage the claimant was represented by solicitors and so they would know the importance of providing the relevant supporting evidence.[10]Then it is said that the immigration judge failed to take certain matters into account and failed to take into account the fact that the claimant would lose the opportunity to give oral evidence in front of the Tribunal. That, of course, is an inevitable consequence of any refusal to extend leave and certainly need not be spelt out by an immigration judge when refusing an extension of time. Mr Hawkin seized on the phrase in paragraph 9 that it was open to the appellant to reapply for entry clearance as a spouse as a foundation for his submission that the judge had not realised that the claimant was in this country and had to leave this country in order to make her claim. That submission ignores paragraph 1 of the determination, from which it is plain that the immigration judge was well aware that there was a refusal of leave to remain in the United Kingdom as the spouse of a British citizen. It is said that the judge did not specify in paragraph 7 of his decision the standard of proof required, but in that paragraph he was no more than saying that there was no satisfactory explanation for the delay.[11]Lastly, it is said the immigration judge failed to have regard to the merits of the appeal. The court should not assume, particularly where the case of BO has actually been cited by the immigration judge, who has said that the principles to be followed in considering an out of time application are the principles set out in that case, that the immigration judge will then proceed to ignore those principles. In any event, this is a case where there was, as I have said, no effective explanation for the delay. It is important to bear in mind that, while the immigration judge had been told that representations had been made on 14th April 2007, he had not been told what they were. There is no indication that they were in effect an attempt to reargue the application as a spouse. On the face of the appeal notice there could well have been some other reason as to why the claimant was contending that she was entitled to remain in this country.[12]Lastly it should be observed that, although Mr Hawkins submits that the grounds comprehensively cover the points raised by the Secretary of State, in very large measure they amount to little more than a bare traverse of what is said in the refusal notice, along the lines of "the appellant will contend she is still the spouse of the same sponsor and their marriage is still subsisting", "the appellant will contend that the couple do intend to live together permanently as husband and wife" et cetera, et cetera. Thus, it cannot be said that these were grounds which were so obviously cogent that they ought reasonably to have led the immigration judge to a different conclusion.[13]In refusing this renewed application for judicial review, I, in effect, endorse the observations of Elias J, who refused the application on paper, where he said that before the immigration judge there appeared to be no explanation along the lines now being advanced that there had been some misunderstanding by the claimant based on the standard form issued by the Home Office. It was up to those advising the claimant, if they had evidence in support of their application for an extension of time, to put it forward at that time. The immigration judge cannot be criticised for dealing with the matter in the way that he did on the material that was put before him.[14]For these reasons, this renewed application is refused.[15]Thank you very much.[16]MR HAWKIN: My Lord, could I just ask that the transcript be extradited?[17]MR JUSTICE SULLIVAN: Yes. Well, why should it be extradited?[18]MR HAWKIN: My instructing solicitors may find that useful.[19]MR JUSTICE SULLIVAN: Sorry, why would it need to be expedited? Is there a particular reason? I mean, is removal imminent?[20]MR HAWKIN: No, my Lord, but there may be consideration of renewing this application to the Court of Appeal and there is a strict seven day time limit.[21]MR JUSTICE SULLIVAN: Well, I do not think it is such a complicated case that you need the expedited transcript.[22]MR HAWKIN: I appreciate that, my Lord, but it does help prevent delays of several months, in my experience.[23]MR JUSTICE SULLIVAN: Well, yes, but unless there is a very good reason for expedition I am not prepared to throw everything else out of kilter.[24]Thank you very much. So I do not order expedition of the transcript. Thank you.