“I am a helpless person. Please stop my detention by immigration and possible removal on humanitarian grounds considering the on-going war, the plight of civilians especially a vulnerable person like me and my child in Sri Lanka.”
“In the meantime, however, we can ask [the writer of the decision letter dated18 July 2008 ] to exercise her discretion by giving our client a fresh appeal right to challenge the decision of [the writer] to refuse our client’s fresh asylum claim since the new evidence have not been properly assessed against the current situation in Sri Lanka.”
“6. The time for giving notice of appeal is set out in Rule 7 and ranges from five to twenty-eight days after the effective notice of decision. (There are special arrangements for "fast-track" cases, which we do not consider further in this determination.) Rule 8 sets out the form and contents of the notice of appeal. Amongst other requirements, the notice must include the grounds of appeal and reasons in support of the grounds, and be signed and dated. Rule 9 provides that if a notice of appeal is given against a decision carrying no right of appeal, the Tribunal "shall not accept the notice of appeal". Rule 10 is headed "Late notice of appeal" and is as follows: "(1) If a notice of appeal is given outside the applicable time limit, it must include an application for an extension of time for appealing, which must- (a) include a statement of the reasons for failing to give the notice within that period; and (b) be accompanied by any written evidence relied upon in support of those reasons. (2) If a notice of appeal appears to the Tribunal to have been given outside the applicable time limit but does not include an application for an extension of time, unless the Tribunal extends the time for appealing of its own initiative, it must notify the person giving notice of appeal in writing that it proposes to treat the notice of appeal as being out of time. (3) Where the Tribunal gives notification under paragraph (2), if the person giving notice of appeal contends that- (a) the notice of appeal was given in time, or (b) there were special circumstances for failing to give the notice of appeal in time which could not reasonably have been stated in the notice of appeal, he may file with the Tribunal written evidence in support of that contention. (4) Written evidence under paragraph (3) must be filed- (a) if the person giving notice of appeal is in the United Kingdom, not later than 3 days; or (b) if the person giving notice of appeal is outside the United Kingdom, not later than 10 days, after notification is given under paragraph (2). (5) Where the notice of appeal was given out of time, the Tribunal may extend the time for appealing if satisfied that by reason of special circumstances it would be unjust not to do so. (6) The Tribunal must decide any issue as to whether a notice of appeal was given in time, or whether to extend the time for appealing, as a preliminary decision without a hearing, and in doing so may only take account of- (a) the matters stated in the notice of appeal; (b) any evidence filed by the person giving notice of appeal in accordance with paragraph (1) or (3); and (c) any other relevant matters of fact within the knowledge of the Tribunal. (7) Subject to paragraphs (8) and (9), the Tribunal must serve written notice of any decision under this rule on the parties. (8) Where- (a) a notice of appeal under section 82 of the 2002 Act which relates in whole or in part to an asylum claim was given out of time; (b) the person giving notice of appeal is in the United Kingdom; and (c) the Tribunal refuses to extend the time for appealing, the Tribunal must serve written notice of its decision on the respondent, which must- (i) serve the notice of decision on the person giving notice of appeal not later than 28 days after receiving it from the Tribunal; and (ii) as soon as is practicable after serving the notice of decision, notify the Tribunal on what date and by what means it was served. (9) Where paragraph (8) applies, if the respondent does not give the Tribunal notification under sub-paragraph (ii) within 29 days after the Tribunal serves the notice of decision on it, the Tribunal must serve the notice of decision on the person giving notice of appeal as soon as reasonably practicable thereafter. … The explanation for the delay 12. Through the Rules, Parliament has made it clear that the explanation for the lateness of a late notice is of importance. An appellant who knows that his notice will be late is required to give his explanation in the notice itself; if there is no explanation then, by the procedure under Rule 10(2)-(4), the Tribunal is required to take certain steps to ensure that any appropriate explanation is before it. In all cases, the explanation for the lateness of the notice needs to be supported by evidence and is an integral part of an application for time to be extended. 13. It seems to us that the explanation for the lateness of the notice should be the Immigration Judge's starting point. It is sometimes said or implied that the starting point might be the strength of the grounds. Sometimes it is suggested that the strength of the grounds of appeal ought to be sufficient to overcome failure to comply with Rules as to time, and it is sometimes said that the strength of the grounds should always be considered. We do not think that is quite right. No doubt, as we indicate below, the strength of the grounds is a factor to be considered if there is some explanation or excuse for the lateness. But it does not seem to us that strong grounds could, by themselves, be a good reason for extending time. If it were so, a person who had strong grounds would in essence be exempt from the requirements as to time. 14. So the first question is, what is the explanation for the lateness? If there is no explanation at all, or no satisfactory explanation, or an explanation which is not supported by evidence that ought to have been readily available, we regard it as very unlikely indeed that it will be right to say that time should be extended. We do not say "never", because that would be dangerous. But in the absence of an explanation, we think that it could only be where there are obvious and quite exceptional reasons for extending time and where the issue is one of wider public importance or where (despite the lack of information provided by the appellant) it is clear that there has been a serious denial of justice, that time would be extended in circumstances in which no, or no properly supported, explanation for the lateness is given. 15. In deciding whether there has been an explanation for the lateness, the Immigration Judge should ensure that whatever explanation is given covers the whole of the period of delay. A week's sickness, even if properly evidenced, is very unlikely to be an explanation for a month's delay. 16. It is our experience that, in this jurisdiction, delay is very often said to be the fault of the appellant's representatives. Either the representatives themselves acknowledge the delay as their fault, or one firm (or the appellant himself) blames the delay on another firm. The principles that we consider ought to be adopted in evaluating explanations of this sort are the following. First, delay by representatives cannot be an explanation for the appellant's own delay. If, therefore, the case is one in which the appellant might be expected to have himself been prompt in ensuring that a timely notice of appeal was entered on his behalf, or if the representatives' delay occurred only after time had already expired, it is very unlikely that delay by the representatives will be an effective explanation for the lateness of the notice. 17. Secondly, a delay by representatives, acknowledged by those representatives as their own fault, may be a satisfactory explanation: but the Tribunal keeps a record of those who offer such explanations, and a firm that finds itself obliged to acknowledge faults of this sort more than once or twice is likely to be reported to the Office of the Immigration Services Commissioner with a view to investigation either by the Commissioner herself or by the appropriate professional body. 18. There is, thirdly, the question of allegations made against a representative who is not now acting. The Tribunal's usual practice, when an appeal is current, is to require the person making the allegations to substantiate them either with an acknowledgement of fault from the earlier representative, or documentation showing that letters on the subject have been sent and not answered. We do not consider that this procedure is practicable in the case of extending time for appealing. Instead, in this type of case the Tribunal will consider the application for extension of time on its merits, noting the evidence that actually has been produced. If the application lacks even evidence which would have been available to the new representatives, that may be the end of the matter. If, on the other hand, the new representatives appear to have done all that they could do in order to make a proper application without extending the delay any further, the absence of information from the old representatives will not be fatal to the application for extension. The Tribunal is, however, likely to require the new representatives to attempt to obtain an acknowledgement of fault from the old representatives and to show, at the hearing of the appeal, either the result or the record of failure. In all such cases the Tribunal is likely to make a report to the Office of the Immigration Services Commissioner. 19. The requirement for evidence is important. In assessing the explanation for delay, the Immigration Judge will be making findings of fact. If he is not shown evidence that ought readily to have been available, or if (whether or not evidence is produced) he does not believe the explanation given on the appellant's behalf, he is entitled to say so and to decide that there has been no effective explanation for the delay. As we have indicated above, in such a case it is very unlikely indeed that time should then be extended. 20. If, on the other hand, there is an effective explanation, whether it amounts to a good excuse or a bad one is merely one of the matters to be taken into account, with all other factors, in deciding whether "by reason of special circumstances it would be unjust not to" extend time. Other factors 21. We cannot, of course, provide a comprehensive list of the other factors that might be relevant: every case depends on its own individual facts and merits. We offer the following observations and guidance on a number of factors that, in our experience, frequently arise for consideration. (i) Strength of the grounds of appeal As we have said, good grounds of appeal cannot be a substitute for timeliness. If there is an explanation for the delay, however, the strength of the grounds of appeal may help to compensate for a bad excuse. The strength of the grounds should therefore always be taken into account in deciding whether to grant an application for the extension of time that is properly supported by an explanation and evidence. The stronger the grounds are, the more likely it is that justice will demand that they be heard. What then of weak grounds? If the grounds are non-existent or simply hopeless, it may be that no useful purpose would be served by extending time and so allowing an appeal to proceed. But the Duty Judge considering whether to extend time should remember that he is not deciding the appeal. If grounds are viable, their weakness should not of itself be a reason for refusing to extend time. (ii) The consequences of the decision Particularly because the refusal to extend time for appealing is for all practical purposes a final decision, the Duty Judge should take into account what the consequences of that decision will be. In the case of an out-of-country decision, the applicant will nearly always have an opportunity to make a new application, receive a new decision and, if necessary, appeal against it in a timely manner. (The only obvious exception is where the appellant has reached the age of eighteen since his original application and so cannot any longer have the benefits of being treated as a minor under the Immigration Rules.) In many decisions relating to those who are within the United Kingdom, however, the consequence of the decision may be that the person no longer has the possibility of an in-country right of appeal: having failed successfully to appeal against the decision he may be subject to removal and, if removed, will for the future be able to maintain his rights only from abroad in response to some future immigration decision. There is thus no doubt that the consequences of refusal to extend time are likely to be more severe when the decision against which the appeal is to be brought is one which carries a threat of removal. We have no doubt that the Duty Judge should take that into account. Having said that, it may well be that the express or implicit threat of removal in the case of an in-country claimant is something which ought to stir him into action: if that is right, it would follow that in such circumstances a long delay would be more difficult to condone. (iii) Length of delay That brings us to general issues relating to the length of the delay. As we have indicated, there must be an explanation or series of explanations that properly cover the whole of the delay. That said, however, it appears to us that if such explanations are put forward, there is no difference in principle between a long delay and a short delay. In particular, firstly, we would not say that there is any length of delay beyond which applications for extension could not normally succeed. Clearly, the length of the delay is a factor to be taken into account with all the other circumstances of the case, but an explanation that is adequate cannot be rendered less so by the length of the delay. At the other end of the scale, we are unable to assent to the proposition that a short delay should always or regularly be condoned. That is equivalent to saying that appellants do not need to meet the requirements of the Rules. We see no such suggestion in the Rules themselves, nor does any principle of justice require it. In in-country appeals, a day's delay is equivalent to an addition of twenty percent or ten percent to the time allowed for appealing: it can hardly be regarded as de minimis. And the fact that only a day has passed since the end of the time limited for appealing cannot conceivably be regarded as a "special circumstance". A person who is a day late needs to explain his lateness in the same way as a person who is a week or a month late. A routine extension, without an explanation or excuse for the delay, is not permitted by the Rules. But, again, the fact that the delay was only a short one is a factor to be taken into account in appropriate cases. (iv) Prejudice to the Respondent It is frequently asserted that a court should be more willing to extend time if to do so would cause no prejudice to the other party. We readily accept that this is a factor to be taken into account in matters relating, for example, to failure to comply with directions during pending litigation. The position in the cases which we are considering, however, is quite different. The prejudice to the Respondent is identical in every case. If there is an appeal, he will no doubt want to defend it. If there is not, he will be saved the trouble and expense of doing so. The passage of time makes no difference to those considerations; and we have not heard that, immediately time for appealing runs out in any case, the Respondent diverts to other projects the money that he would have used to defend an appeal if it had been brought. No doubt it could be said that the Respondent is entitled to know the extent to which he is at risk of having to defend an appeal. In practical terms, however, bearing in mind the numbers involved, the impact on the Respondent is minimal. For these reasons, it appears to us that no argument based on lack of prejudice to the Respondent can have any force at all in individual applications for the extension of time. (v) Mistakes, delays and breaches of Rules by the Respondent No doubt it is a consequence of the enormous numbers to which we have just made reference that it occasionally happens that applications are lost or unaccountably delayed; sometimes mistakes are made in dealing with them, sometimes amounting to a breach of the Rules. We would not accept that all errors and mistakes by the Respondent entitle an appellant to an extension of time; but there are two areas in particular where the Respondent's conduct may be of relevance. First, it may be that an error by the Respondent has caused or contributed to the appellant's delay. For example, the Respondent might have made a mistake as to the address for the service of the notice of decision, or he might have miscalculated the date for the service of the notice of appeal and so misled the appellant into thinking that he had longer to appeal than he did have. It is very unlikely that an Immigration Judge would want to take such a factor into account without the clearest of evidence supporting a claimant's allegation: but if there was such evidence, it is very likely that the interests of justice would require the Respondent's mistake not to be held against the appellant. Further, where there is a breach of the Rules or a mistake or very extensive delay in the Respondent dealing with the appellant, it might in some circumstances be regarded as disproportionate to refuse to extend the appellant's time for appealing. Clearly, any such case would depend on the individual facts. 22. We must again emphasise that the foregoing is not intended to be a complete list. What is important is that the Duty Judge takes into account all the material that is before him and balances all the factors, including the adequacy of the explanation, against one another in order to decide whether the case is one in which there are special circumstances demanding that time be extended in the interests of justice.”
“2 This appeal is being lodged well out the specified time period for the following reasons: i. The [claimant’s] previous representatives had failed to appeal against the [SS’s] refusal letter dated18 July 2008 , and had failed in their duty of care to represent the [claimant’s] best interests. ii. The [claimant’s] previous representatives ceased acting for the [claimant], without due notice to the [claimant] and failed to advise her to appeal within the prescribed time period and further did not advise her to seek alternative representation. iii. The [claimant] submits that her asylum claim has merit and she must not be deprived of giving oral evidence before an Immigration Judge and must not be deprived of discharging the burden of proof in relation to those matters raised by the [SS] in her refusal letter. iv. The [claimant] respectfully reminds the Court as to the abject deterioration in the Country situation in Sri Lanka and submits that there will be a serious breach of the Refugee Convention if she is removed to Sri Lanka. v. The [claimant] is a single mother with a very young child and her appeal and application for protection must be considered by an independent Immigration Judge prior to any removal. vi. The [SS] has set removal for18 April 2009 on the premise that the [claimant] decided not to exercise her appeal right, which is incurred. i. The [claimant’s] previous representatives had failed to appeal against the [SS’s] refusal letter dated18 July 2008 , and had failed in their duty of care to represent the [claimant’s] best interests. ii. The [claimant’s] previous representatives ceased acting for the [claimant], without due notice to the [claimant] and failed to advise her to appeal within the prescribed time period and further did not advise her to seek alternative representation. iii. The [claimant] submits that her asylum claim has merit and she must not be deprived of giving oral evidence before an Immigration Judge and must not be deprived of discharging the burden of proof in relation to those matters raised by the [SS] in her refusal letter. iv. The [claimant] respectfully reminds the Court as to the abject deterioration in the Country situation in Sri Lanka and submits that there will be a serious breach of the Refugee Convention if she is removed to Sri Lanka. v. The [claimant] is a single mother with a very young child and her appeal and application for protection must be considered by an independent Immigration Judge prior to any removal. vi. The [SS] has set removal for18 April 2009 on the premise that the [claimant] decided not to exercise her appeal right, which is incurred. 3. The [claimant] submits that the time period for filing this appeal should be extended due to the aforementioned special circumstances, which have occurred as a result of the failure of the [claimant’s] previous representatives.”
“In this case, it would appear that whether or not it has been acknowledged [that the delay was caused by the claimant’s representatives], the delay was the fault of the representatives. I am, of course, aware that the immigration judge points out that the representatives having delayed, it would have been possible for the claimant to put in an appeal in herself. Nevertheless, she did have representatives and it appears that at least arguable that the approach of the immigration judge was to say, in effect: your representatives have delayed in making this appeal in time and given that you yourself could have and did not put in a notice of appeal, time will not be extended because there has been no satisfactory explanation. I think it is arguable that that approach does not comply with the case law to which I have referred.”