(Immigration and Asylum Chamber)
Boktor and Wanis (late application for permission) Egypt  UKUT 00442 (IAC)
THE IMMIGRATION ACTS
Heard at Field House
On 12 September 2011
UPPER TRIBUNAL JUDGE ALLEN
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Treza Sabry eshak boktor
REMON WILLIAM GADOON WANIS
For the Appellants: Ms V Easty, instructed by Brighton Housing Trust
For the Respondent: Mr J Gulvin, Home Office Senior Presenting Officer
Where permission to appeal to the Upper Tribunal has been granted, but in circumstances where the application is out of time, an explanation is provided, but that explanation is not considered by the judge granting permission, in the light of AK (Tribunal appeal - out of time) Bulgaria  UKIAT 00201 (starred) and the clear wording of rule 24(4) of the Asylum and Immigration (Procedure) Rules 2005, the grant of permission to appeal is conditional, and the question of whether there are special circumstances making it unjust not to extend time has to be considered.
DETERMINATION AND REASONS
1. The respondents (hereafter referred to as the claimants) appealed to an Immigration Judge against decisions of the Secretary of State of 19 November 2009 to remove them as illegal entrants from the United Kingdom. The Immigration Judge found the claimants to be credible and allowed their appeals. The determination was dated 3 February 2011.
2. An application for permission to appeal was made by the Secretary of State. It is recorded as having been received by the Tribunal on 17 March 2011. The date of the First-tier Tribunal determination at section B of the appeal form was said to be 9 February 2011. Attached to the grounds was an explanation as to why the application was made late. It was said that the application was drafted before the deadline to appeal expired but was not faxed to the Tribunal on the date of drafting. It was said that this was a unique oversight and a genuine error. The person who provided the reasons for lateness said that when she was on maternity leave there was a change of process in how the grounds of reconsideration were served on the IAC and she had been unaware of this change which resulted in the application not being faxed even though it was clearly drafted within time. Reliance was placed on the decision of the Tribunal in the case of BO and Others (Extension of the time for appealing) Nigeria  UKAIT 00035. It was submitted that the explanation for lateness covered the entire period of the delay in each case and that the delay was not caused after the deadline had already expired and it was submitted that all the attached applications were drafted in time and evidence of this was attached in the form of screen printouts with the relevant date cited in each case. It was said that once it became apparent on Monday 14 March that this mistake had occurred the grounds for reconsideration were quickly retrieved. The determinations in each case were not attached as it was said that this would require further delay in requesting the documents from Home Office files. It was submitted this was not a routine request for an extension of time but a unique error which amounted to a special circumstance.
3. Permission to appeal was granted by a judge of the First-tier Tribunal on 24 March 2011. There was no reference to the lateness of the application or to the reasons given as to why the application was late.
4. At the hearing before me Ms Easty raised an issue of jurisdiction, contending that the application had been made out of time and no decision had been made to extend time. She argued that as there was no decision to extend time in the present case, in accordance with Rule 24(4)(b) of the Procedure Rules there was no appeal before the Tribunal until such a decision was made. It was argued that the entire period of delay was not covered by the explanation given. The reasons for delay did not fulfil the obligation to disclose all material matters. Issues in respect of prejudice had not been dealt with.
5. The judge’s decision had been promulgated, it was argued, on 3 February, although the date of 9 February had been given by the Home Office and Ms Easty would proceed on the basis of that later date. Grounds were put in on 16 March. Proper, precise and clear explanations were needed. It had only been discovered what had happened because the appellant’s representatives had alerted the Home Office to the issue. The explanation was required to cover the entire period of delay. It was unclear when the drafter was on maternity leave and when she returned. She had made reference to BO but had not followed the guidance set out in that case. There was no explanation for the later delay nor why the grounds were not served on 14 March. A third of the period of delay had not been explained. As regards the issue of prejudice, the appellant and her mother had deteriorated in health due to the shock of the appeal. The grounds were not strong and that was a relevant factor. There was no challenge to the credibility findings.
6. Mr Gulvin said he did not wish to dispute the dates and was happy to leave the matter to the Tribunal. If he were allowed to he would be pursuing the grounds.
7. In light of the issue raised it seemed to me best to have written submissions from Ms Easty with the opportunity for Mr Gulvin to respond if he so wished. Written submissions were received from Ms Easty on 20 September, and I have received no response from Mr Gulvin. It is therefore proper in my view to proceed to determine the matter.
8. Rule 24 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 states as follows:
“Application for permission to appeal to the Upper Tribunal
24-(1) A party seeking permission to appeal to the Upper Tribunal must make a written application to the Tribunal for permission to appeal.
(2) Subject to paragraph (3), an application under paragraph (1) must be sent or delivered to the Tribunal so that it is received no later than five days after the date on which the party making the application is deemed to have been served with written reasons for the decision.
(3) Where an appellant is outside the UK, the time limit for that person sending or delivering an application under paragraph (1) is 28 days.
(4) If a person makes an application under paragraph (1) later than the time required by paragraph (2) –
(a) The Tribunal may extend the time for appealing if satisfied that by reason of special circumstances it would be unjust not to do so; and
(b) Unless the Tribunal extends time under sub-paragraph (a), the Tribunal must not admit the application.
(5) An application under paragraph (1) must –
(a) Identify the decision of the Tribunal to which it relates;
(b) Identify the alleged error or errors of law in the decision; and
(c) State the result the party making the application is seeking.”
9. The timescale in this case is essentially as set out in Ms Easty’s written submissions. That is to say, the Immigration Judge’s determination was promulgated on 9 February 2011, the time limit for an application for permission to appeal expired on 16 February 2011 and the application for permission to appeal was faxed to the First-tier Tribunal on 17 March 2011 (not 16 March, as Ms Easty thought). It is clear, therefore, that the application was made late and that of course is acknowledged in the reasons for its lateness that were attached to the grounds.
10. In her written submissions Ms Easty refers first of all to BO, reference to which is set out above, and also to the decision in TR v Asylum and Immigration Tribunal  EWHC 2055 (Admin). Both these cases were concerned with late applications for permission to appeal against decisions of the Secretary of State, rather than late applications for permission to appeal against a decision of an Immigration Judge. It is relevant to note, however, that the relevant procedure rule (Rule 10) like Rule 24 also permits the identification of “special circumstances” enabling time to be extended if the Tribunal is satisfied it will be unjust not to do so. I shall return to these two decisions shortly, but it is I think relevant to make the point at this stage that of course since they are dealing with a somewhat different issue of a late appeal against the decision of the Secretary of State rather than a late appeal against an Immigration Judge’s decision the context is inevitably somewhat different.
11. I have derived assistance from an earlier decision, one of the Immigration Appeal Tribunal, in AK (Tribunal appeal – out of time) Bulgaria  UKIAT 00201, a starred decision of that Tribunal. The Tribunal had before it three cases in each of which the Secretary of State had been granted permission to appeal against the determination of an Adjudicator despite the fact the application was late. The relevant provision was Rule 18 of the Immigration and Asylum Appeals (Procedure) Rules 2000. The relevant parts of this provide as follows:
“Leave to Appeal
18 (1) An appeal from the determination of an Adjudicator may be made only with the leave of the Tribunal.
(2) An application for leave to appeal shall be made no later than 10 days, or in the case of an application made from outside the United Kingdom, 28 days, after the appellant has received written notice of the determination against which he wishes to appeal.
(3) A time limit set out in paragraph (2) may be extended by the Tribunal where it is satisfied that because of special circumstances it is just for the time limit to be extended.
12. It can be seen, therefore, that the concept of “special circumstances” was employed in those Rules, although rather than the Tribunal being satisfied that by reason of those circumstances it would be unjust not to extend time it is rather a matter of the Tribunal being satisfied because of special circumstances it is just for the time limit to be extended. There is also an absence of an equivalent provision to Rule 24(4)(b). In two of the three cases before the IAT permission to appeal had been granted by a Vice President of the Tribunal with no reference being made to any problems in relation to time although in each case the application was out of time. In the other case procedural points in respect of lateness were taken before a panel of the IAT, since the application was a day late, but the Vice President presiding indicated that his practice was to consider whether the application was roughly in time or not and if it were the case, the Vice President who granted permission should be deemed to have granted the necessary extension.
13. The Tribunal commented that it was of course impossible to provide a list of what might be “special circumstances”. It was clearly of the view that the strength of grounds of appeal could not by itself be a ground for extending time, for if that was the case, as was pointed out, a person who had strong grounds of appeal would never need to comply with any time limits. The strength of the grounds might, however, be relevant in assessing the circumstances as a whole.
14. The Tribunal did not accept that a grant of permission could be deemed to include the granting of an extension of time. As it pointed out, it is difficult to see that failure to notice that the application was out of time could be regarded as exercising the discretion involved in granting an extension of time.
15. The Tribunal went on to conclude that the grant of leave to appeal on an out of time application was one which was merely irregular, and therefore if neither party took the point about time before the Tribunal issued its final determination then the irregularity was simply waived, and it would be too late for an objection to the Tribunal hearing the matter on the ground that the application was out of time. The Tribunal commented that the absence of objection by the respondent to the appeal proceeding itself constituted special circumstances for the Tribunal’s implicit extension of time. However, if the respondent did take the point about time the grant of leave to appeal could be seen as conditional upon time being extended and it was an indication of what the decision on the application would be if it were in time. If the applicant demonstrated the existence of special circumstances and persuaded the Tribunal to extend time, then the grant of leave to appeal would stand. If, however, on the other hand there were no special circumstances or the Tribunal declined to exercise its discretion to extend time, the grant of permission was ineffective.
16. I am bound by AK as a starred decision of the IAT (see Practice Direction 12-1). It is the case, therefore, that the grant of leave to appeal in this case is conditional and in this regard I think the reasoning in AK is reinforced by Rule 24(4)(b). The question is, therefore, whether there are any special circumstances, and in this regard the reasoning in BO and TR is relevant. In her written submissions Ms Easty has argued that no explanation was given as to why the grounds were not faxed on the day they were drafted. The drafter of the grounds does not state when she returned from maternity leave and therefore it is entirely unclear how the return from maternity leave relates to the deadline date. There was a failure to specify when the procedure for service on the IAC changed and what that change was and therefore no indication as to whether it was very recent or whether it was a fundamental or marginal change, and the point is also made that it is clear that the drafter knew of the error on 14 March but that the grounds were not served on that day but three days later, on 17 March. Ms Easty argues, therefore, that the contention that the explanation covers the entire period of the delay is erroneous.
17. In BO the Tribunal stated that the first question was what the explanation was for the lateness and if there was no explanation or not a satisfactory explanation or one that was not supported by evidence that ought to have been readily available then it would be very unlikely, indeed it would be right to say that time should be extended. The point is also made that the judge should ensure that whatever explanation is given covers the whole of the period of delay. Delay by representatives cannot be an explanation for the appellant’s own delay and, therefore, if the case is one in which the appellant might be expected to have himself been prompt ensuring a timely notice of appeal was entered on his behalf or if the representative’s delay occurred only after time had already expired it would be very unlikely that delay by the representatives would be an effective explanation for the lateness of the notice. It is also said that the requirement for evidence is important. In assessing the explanation for delay an Immigration Judge will be making findings of fact and if he has not been shown evidence that ought readily to have been available or if he does not believe the explanation given on the appellant’s behalf, whether or not evidence is produced, he is entitled to say so and to decide there has been no effective explanation for the delay. Other relevant factors may include the strength of the grounds of appeal (bearing in mind what was said above in this regard) the consequences of the decision, the length of delay, prejudice to the respondent and mistakes, delays and breaches of Rules by the respondent.
18. This decision was roundly endorsed by a Deputy High Court Judge in TR. He applied it to the facts of that case, noting that the judge had not undertaken a structured decision-making process and had not faithfully followed the BO guidelines.
19. I consider there is force in the points made by Ms Easty concerning the claimed special circumstances in this case. There is a lack of explanation as to relevant matters such as why the grounds were not faxed on the day they were drafted, the relevant timescale of the drafter’s maternity leave, return from maternity leave, when the procedure for service on the IAC changed, what that change was and why, when the grounds were “quickly retrieved” on 14 March, they were not served until 17 March. The period of delay is clearly a significant one in this case and that would be so even if it were just the three days between 14 and 17 March. The grounds of appeal are not especially strong, and Ms Easty has made the point that there is no challenge to the credibility findings. She makes the point, though I am not aware of any evidence supporting this, that the claimants’ health has been affected by the late challenge to the decision in their favour. I have already commented on the length of delay which I consider to be of some significance in this case. There have been no mistakes, delays or breaches of Rules by the claimants. Taking all these matters as a whole, therefore, I am not satisfied that by reason of special circumstances it would be unjust not to extend time. I accordingly decline to extend time in this case. It follows that, the appeals of the appellants having been allowed by the Immigration Judge, that decision stands.
Upper Tribunal Judge Allen
Immigration and Asylum Chamber