FS (Service of determination) Eritrea [2007] UKAIT 00084 (13 September 2007) [2007] UKAIT 00084

UKAIT
FS (Service of determination) Eritrea [2007] UKAIT 00084 (13 September 2007)
[2007] UKAIT 00084 · 2007-09-13
[1]FS (Service of determination) Eritrea [2007] UKAIT 00084 ASYLUM AND IMMIGRATION TRIBUNAL Date of hearing: 27 March 2007 Date Determination notified: 13 September 2007 Before Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal Senior Immigration Judge Drabu Senior Immigration Judge Grubb Between FS APPELLANT and Secretary of State for the Home Department RESPONDENT For the Appellant: Ms R Baruah, instructed by White Ryland For the Respondent: Mr P Deller, Home Office Presenting Officer NOTICE(1) The calculation of the time when a determination of the Tribunal is served on a party is governed by the Procedure Rules of the Tribunal and not by the CPR; although decisions on the meaning of phrases in the CPR may be of assistance in the interpretation of the same phrases in the Procedure Rules.(2) Proof that a determination was not received on the second day after posting may be by any of the usual means, including judicial notice and a statement of truth; but (save when rule 55(4) causes time to start to run) evidence of service on the representative is no evidence of the date of service on the party himself.(3) Where the evidence merely negates the deemed date of service, service is deemed to have taken place on the next day that the evidence does not negate. The appellant is a citizen of Eritrea. He appealed to an Immigration Judge against the decision of the Secretary of State on 31 May 2005 to give directions for his removal to Eritrea having refused asylum. The Immigration Judge dismissed the appeal. The appellant then applied for an order for reconsideration. Reconsideration was refused by a Senior Immigration Judge, but an order, whose terms we set out below, was made by Beatson J. Thus the matter comes before us.[2]As will also shortly become apparent, we are concerned in this appeal with the question whether the application for reconsideration was in time. We therefore begin by setting out the relevant dates. The hearing before the Immigration Judge was on 11 July 2005. She signed her determination on 12 July. On 20 July it was transmitted to the respondent, under the provisions of rule 23 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005/230). Under the provisions of that rule, it was for the Secretary of State to serve the determination on the appellant and his representative. It is acknowledged on behalf of the appellant (in paragraph 1 of the grounds for review) that that was done on 22 July 2005. 22 July 2005 was a Friday. The application for an order for reconsideration was received on 2 August 2005. It raises issues in relation to the substance of the Immigration Judge's determination; but it also includes the following wording:
"1) The Decision Is NOT out of time according to the Rules (as opposed to what the Home Office/AIT allege) 2) The Decision is received on 26/7/05 and the grounds are lodged within 5 days."
Those words are incorporated in a Statement of Truth by a solicitor with White Ryland, the firm representing the appellant.[3]The Senior Immigration Judge's decision on the application was as follows:
"Contrary to the assertion by White Ryland at Part B of the Application Notice, this application was received out of time. The Determination was promulgated on 22 July 2005, as is stated at paragraph 1 of the grounds. The deemed date of receipt was 25 July 2005 - the Saturday is counted, because there is postal service on Saturdays. The deadline was therefore 1 August 2005. The application was received on 1 August 2005, but only at 18.25. Since it was received after 4.p.m., this means it is deemed to have been received the next working day - i.e. on 2 August 2005 (see Rule 6.7 of the CPR). The bare contention in Part B of the Application Notice that the Determination was only received on 26 July 2005, unsupported by any evidence, is not enough to prove the contrary within Rule 55(5) of the 2005 Procedure Rules, particularly as the Determination was sent not only to White Ryland but also to the Appellant. The grounds do not suggest that both the Appellant and White Ryland only received the Determination on 26 July 2005. I have therefore treated this as an out of time application. Section 103A(4) of the Nationality, Immigration and Asylum Act 2002 as amended by section 26 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 provides that the appropriate court may permit an application to be made outside the prescribed time period if it thinks that the application could not reasonably practicably be made within the prescribed period. No explanation has been provided for the delay in submitting the application. Accordingly, I am not satisfied that the application could not reasonably have been made within the prescribed period. Accordingly, I do not permit the application to be made outside the prescribed period. Further, and in any event, I would have refused the substantive application even if it had been received in time or I had extended time. The "
Voice of America" article and the Amnesty International Report are both dated 28 July 2005 and both post-date the hearing which took place before the Immigration Judge on 11 July 2005. These documents were therefore not submitted to the Immigration Judge. Contrary to the contention in paragraph 3 of the grounds, it is clear from the Determination in the IN case that the Tribunal did consider whether there was a general risk to all returnees. It concluded, after considering the evidence before it (including the evidence relied on in paragraphs 4 onwards of the grounds) that returnees are not generally at real risk. Paragraphs 4 onwards of the grounds amount to no more than an attempt to re-argue this issue. The grounds disclose no material error of law in the determination. There is no prospect of the appeal being decided differently on a reconsideration ( Rule 26(6) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 )." That decision provoked a response by letter to the President of the Tribunal from the appellant's solicitors, referring to rule 2.8(4) of the Civil Procedure Rules, to which we make further reference below. The letter makes further points which may be taken as an objection to the terms of rule 23, and continues as follows:
"We date-stamp our post as received on the morning it is received at our offices. The deemed date of receipt is the second day after the date of posting unless the contrary can be proved. Our date-stamp has been dismissed as not proving the contrary by some SIJs. We enclose an example as such a decision. In a system where there is room for confusion, a solicitors' received date-stamp (applied normally by a partner of the firm) should be accepted as reliably evidencing the actual date of receipt, legitimately ousting the deemed date of receipt, as provided for in the deeming provisions of rule 55(5) of the 2005 Procedure Rules."
[4]In fact four decisions were enclosed with that letter, all by the Senior Immigration Judge who dealt with this application. It looks as thought the same decisions must have been included with the renewed application to the court, for the Judge's order is as follows:
" IT IS ORDERED that 1. The Tribunal reconsider its decision on the appeal 2. That the matter be listed before the President or a Vice-President of the Tribunal Reasons: Although the argument that the findings in IN were applied irrationally and unreasonably by the Immigration Judge in this case is tenuous in view of the statement in paragraph 44(ii) of IN that 'if someone is eligible for call up over a significant period but has not been called up, then … there will normally be no basis for a finding that he or she would be regarded as a draft evader', the evidence that the Libyan returnees were all detained on arrival means it is not unarguable in the case of a person only five years older than IN. Were this the only concern in this case in view of rule 26(6)(b), I might not have ordered that the Tribunal reconsider its decision. However, the issue of whether this application was out of time raises general issues as to whether Saturday counts in calculating the deemed day of receipt and whether a statement of truth signed by a solicitor suffices to support facts stated in support of an application for an extension of time. It is arguable that the Senior Immigration Judge erred in law in concluding that the application was out of time. In view of the other cases in which this Senior Immigration Judge has made similar findings the matter should be listed before the President or a Vice-President of the Tribunal so that an authoritative determination can be given."
[5]The terms of that Order put us in some difficulties, because although it is on its face an order for reconsideration of the appeal, it is apparent from its terms that Beatson J intended that the Tribunal reach a view on whether the application was to be treated as out of time. If it is out of time, then unless time could lawfully be extended, there can be no reconsideration. It is evident that the Judge thought that the matter was "arguable" and that he did not seek himself to reach a final decision on it. We have therefore taken the Judge's order as amounting to an order that we first consider whether the Senior Immigration Judge's calculation of time was correct. If it was, then, subject to any questions as to whether time should be extended, that is the end of the matter.[6]The time limit for making an application for reconsideration is, rather surprisingly, in primary legislation. Section 103A(3) of the Nationality, Immigration and Asylum Act 2002 is as follows:
"An application under subsection (1) must be made - (a) in the case of an application by the appellant made while he is in the United Kingdom, within the period of 5 days beginning with the date on which he is treated, in accordance with rules under section 106, as receiving notice of the Tribunal's decision, (b) in the case of an application by the appellant mad while he is outside the United Kingdom, within the period 28 days beginning with the date on which he is treated, in accordance with rule 106, as receiving notice of the Tribunal's decision, and (c) in the case of an application brought by a party to the appeal other than the appellant, within the period of 5 days beginning with the date on which he is treated, in accordance with rules under rule 106, as receiving notice of the Tribunal's decision."
[7]The Rules made under s106 are the Asylum and Immigration Tribunal (Procedure) Rules 2005, to which we have already referred. In the case of an in-country appeal relating "in whole or in part to an asylum claim", rule 23 requires the Tribunal to serve the determination on the respondent and rule 23(5) requires the respondent to serve the determination on the appellant and notify the Tribunal on what date and by what means it was served. In all other cases the Tribunal is required to serve the determination on both parties. Rule 55 is entitled "Filing and service of documents". The relevant parts of it are as follows:
"55 - (1) Any document which is required or permitted by these Rules or by a direction of the Tribunal to be filed with the Tribunal, or served on any person may be - (a) delivered, or sent by post, to an address; (b) sent via a document exchange to a document exchange number or address; (c) sent by fax to a fax number; or (d) sent by e-mail to an e-mail address, specified for that purpose by the Tribunal or person to whom the document is directed. … (3) Where a person has notified the Tribunal that he is acting as the representative of an appellant and has given an address for service, if a document is served on the appellant, a copy must also at the same time be sent to the appellant's representative. (4) If any document is served on a person who has notified the Tribunal that he is acting as the representative of a party, it shall be deemed to have been served on that party. (5) Subject to paragraph (6) [which has no bearing on this appeal], any document that is served on a person in accordance with this rule shall, unless the contrary is proved, be deemed to be served - (a) where the document is sent by post or document exchange from and to a place within the United Kingdom, on the second day after it was sent; (b) where the document is sent by post or document exchange from or to a place outside the United Kingdom, on the twenty-eighth day after it was sent; and (c) in any other case, on the day on which the document was sent or delivered to, or left with, that person. … ."
Rule 57 is headed "Calculation of time" and is as follows:
"57 - (1) Where a period of time for doing any act is specified by these Rules or by a direction of the Tribunal, that period is to be calculated - (a) excluding the day on which the period begins; and (b) where the period is 10 days or less, excluding any day which is not a business day (unless the period is expressed as a period of calendar days). (2) Where the time specified by these Rules or by a direction of the Tribunal for doing any act ends on a day which is not a business day, that act is done in time if it is done on the next business day."
The Civil Procedure Rules deal with applications under s103A of the 2002 Act at 54.28 and following. By rule 54.28(4), rule 2.8 (that is the rule about the calculation of time) applies to the calculation of the period of time specified in s103A(3) of the 2004 Act and to the period for renewing an application to the Court if it has been refused by a Senior Immigration Judge under paragraph 30(5)(b) of Schedule 2 to the 2004 Act.[8]The dispute in the present case relates to the service of the determination by the Tribunal. That is a matter governed entirely by the Asylum and Immigration Tribunal (Procedure) Rules 2005. It is only after the "date [the appellant] is treated, in accordance with the Rules under s106, as receiving notice of the Tribunal's decision" that the periods of five or twenty-eight days limited by s103A run. Those periods are governed by the Civil Procedure Rules, as provided in paragraph 54.28 of those Rules. But nothing in the CPR can affect the operation of the Tribunal's Procedure Rules in regard to service of the Tribunal's documents.[9]So far as the Tribunal's Procedure Rules are concerned, service of determinations and all other documents is governed by rule 55. Rule 57, which for completeness we have set out above, has no bearing on the service of documents, because rule 55 does not provide "a period of time for doing any act". It simply provides that "unless the contrary is proved" a thing (service) shall be deemed to have happened on the second day after something else (posting) happened. For the same reasons, even if rule 2.8 of the CPR applied to the service of Tribunal determinations (which, as we have said above, it does not), the reference to paragraph 2.8(4) in the solicitors' letter to the President would be inapposite, because rule 2.8 is also concerned with the calculation of "any period of time for doing any act". The reference to rule 2.8 in that letter is particularly surprising as it appears to ignore the decision of the Court of Appeal in the leading case, Anderton v Clwyd County Council [2002] EWCA Civ 933 ; [2002]1 WLR 3174. At [37]-[45] the Court takes exactly the same view of the interpretation of CPR rule 2.8 and its non-application to the deemed service rule, rule 6.7(1), as we have taken in relation to rules 57 and 55 of the Tribunal's Rules, despite, in the case of the CPR, a parenthetical reference to rule 2.8 in rule 6.7(1).[10]The position is therefore that, the determination having been sent out on Friday, 22 July 2005, it is deemed for the purposes of s103A to have been served on 24 July 2005 unless the contrary is proved. 24 July 2005 was a Sunday.[11]In Anderton v Clywd the Court was faced with exactly this problem, but in a slightly different context. The deeming provisions of CPR rule 6(7) were, as the Court held in that case (following on this point Godwin v Swindon Borough Council [2001] EWCA Civ 1478 ; [2002] 1 WLR 997 ) not rebuttable by evidence. In that context the Court noted that service might be deemed to take place by post on a day on which there was no post. In setting out its comments at [44] the Court noted the potential disadvantage to the defendant:
"Saturday is a 'day' and so is Sunday. The fact that there is, or may be, no postal delivery to the defendant or to his legal adviser on either of those days or that there may be no one at the premises of the defendant or of his legal adviser to deal with documents that are delivered on those days is legally irrelevant to the operation of the fiction of deemed service of the claim form selected by the claimant: they are not dependent on the particular circumstances of the defendant to whom the claim form has been posted."
[12]In R (Saleem) v SSHD [2001] 1 WLR 443 the Court of Appeal held ultra vires a rule governing the service of immigration and asylum determinations that provided for deemed service with no opportunity to prove that service had not taken place as deemed. The present provisions, in rule 55, therefore provide for service to be as deemed "unless the contrary is proved". There is no specific restriction on the mode of proof. The Tribunal takes judicial notice that there is not usually a postal delivery in the United Kingdom on a Sunday. That is sufficient to prove that service did not take place, as deemed, on 24 July 2005.[13]Does rule 55 then have any application at all? A literal reading might suggest not. It is expressed to apply only "unless" the contrary is proved; and as it has been shown in the present case that the document was not served on the second day after posting, the contrary has been proved. But it would make a nonsense of this and every other similar provision (and there are many, in legislation and in standard form contracts) where evidence is admissible, if a party could require proof of actual service by the simple technique of disproving the deemed date of service and doing no more. Besides, the legislator must be supposed to have the same knowledge of the postal service that the Tribunal does, and cannot rationally be thought to have been making arrangements for documents posted on Fridays that were radically different from the arrangements for documents posted on other days. Miss Baruah did not suggest that the rule should be read in a manner different from that which we suggest below.[14]Whatever the date of posting, the phrase "unless the contrary is proved" gives an opportunity for the adduction of evidence of an actual date of service different from the deemed date. When, however, the only effect of the evidence (or other material of which the Tribunal takes notice) is to exclude the deemed date (rather than also offering another date), the obvious solution is to read rule 55 as deeming service to have taken place on the next day that is not excluded. That, in the circumstances of the present appeal, was 25 July 2005.[15]On that day, unless the contrary is proved, the determination was served on the appellant and on his solicitor. Time runs, according to s103A, from the date of service on the appellant. There is and was no evidence that the appellant did not receive his copy of the determination on 25 July 2005. Time therefore runs from that date.[16]For that reason, the question of the date of service on the solicitors is largely irrelevant. If service on them had preceded service on the appellant, he would have been fixed with a period of time beginning with the service on them, because of rule 55(4). But that is not said to have been the position here. What is clear is that time for the appellant cannot be extended by later service (or deemed service) on the representatives, as the solicitors appear to have assumed in this case.[17]We note the information given in the solicitors' letter that, in that particular firm, the date-stamping is done by partners. We beg to leave to doubt whether that is a universal practice in solicitors' firms. But it is clear that a Statement of Truth by a solicitor could amount to evidence proving the contrary for the purposes of rule 55(5). What was before the Senior Immigration Judge was not, however, the circumstantial account given by the solicitors in their letter to the President of the Tribunal. It was simply the assertion in two numbered paragraphs which we have set out earlier in this determination. That appears to be an allegation about the calculation of the deemed date of service, rather than an allegation about actual service in the present case. Despite what the solicitors say about their practice, the documents sent with the application for a reconsideration order do not include any document date-stamped by them on 26 July: in particular, the determination itself bears only the stamp of "22 JUL 2005", the date it was sent to them. Even if the date of service on the solicitors had been relevant for the purposes of this appeal, therefore, it is difficult to see why the Senior Immigration Judge should have thought that she was being asked to consider evidence proving that the determination had not been served on 25 July 2005.[18]For the foregoing reasons, the appellant had, beginning on 25 July 2005, the five days limited by s103A(3), calculated in accordance with CPR rule 2.8, within which to make an in-time application. As the Senior Immigration Judge noted, the application, which was dated by the solicitors "1/8/05", was sent by fax at 18:25. As she correctly noted, CPR rule 6.7(1) applies to that service, which is accordingly deemed to have taken place on the business day after transmission. That was Tuesday, 2 August 2005.[19]Applying the provisions of CPR rule 2.7, the period of five days limited by s103A(3) is to be computed as "clear days", that is to say ignoring the day on which the period begins (rule 2.7(2)(iii)). As the period is five days or less, Saturdays and Sundays do not count (rule 2.7(4)). A period of five days beginning on Monday 25 July 2005 ended, according to those Rules, on Monday 1 August 2005. Service on 2 August was out of time.[20]There was no application to extend time, because the application was asserted to be in time. Nevertheless, in the circumstances, we ought to consider this issue. Extension of time is also governed by primary legislation.

(b) is as follows:

"The [Tribunal] may permit an application … to be made outside the period specified in subsection (3) where it thinks that the application could not reasonably practicably have been made within that period."
[21]Whether or not the solicitors received their copy of the determination only on 26 July 2005, there is nothing which would found a conclusion that the application for an order for reconsideration "could not reasonably practicably" have been made in time. There is therefore no basis for extending time.[22]The result of the foregoing is that the application for a reconsideration order was made out of time; the Senior Immigration Judge was right to conclude that it had been made out of time; and that the arguments identified by Beatson J as possibly leading to a different conclusion must be rejected.[23]It follows from that, and from what we said earlier in this determination, that although Beatson J appeared to order reconsideration on the merits, the matter is not before us. No reconsideration order could be made by either the Tribunal or the Court, because no in-time application had been received; no ground had been given for the extension of time; and, in any event, time has not been extended. We therefore conclude that the appellant's appeal is not pending before the Tribunal and that no further decision on it is required: the Immigration Judge's determination stands unchallenged. C M G OCKELTON DEPUTY PRESIDENT Date:

Cited in 1 later judgment