Tribunal decisions

The decision

ASYLUM AND IMMIGRATION TRIBUNAL

EY (Asylum determinations - date of service) Democratic Republic of Congo [2006] UKAIT 00032

THE IMMIGRATION ACTS

Heard at Field House Determination Promulgated:
On 14th February 2006 On 28 February 2006

Before

Mr Justice Hodge OBE, President
Mrs J A J C Gleeson, Senior Immigration Judge
Mr P D King, Senior Immigration Judge

Between

Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr P Jorro, Counsel
For the Respondent: Mr J Gulvin, Senior Presenting Officer

The date and means of service by the Home Office of asylum determinations is rarely clear. This creates difficulties in cases where an application for reconsideration is made when any question arises as to whether the application is in time. A standard letter giving the date of posting should be sent by the Home Office with every determination they serve by post.

DETERMINATION AND REASONS

1. The appellant is a citizen of the Democratic Republic of Congo. He arrived in the United Kingdom on 7th April 2005 using a false passport. He claimed asylum the following day. His claim was refused on 12th May 2005 and a Decision to Remove an Illegal Entrant – Asylum/Human Rights Claim Refused Notice was issued on 16th June 2005. His appeal against that decision was dismissed both on asylum and human rights grounds by Mr P F Hague, Immigration Judge in a determination signed by him on 23rd July 2005. The appellant applied for a review of that decision and a reconsideration was ordered by a senior immigration judge on 31st August 2005.

Service of asylum determinations

2. The senior immigration judge in his reasons for decision indicated that this appeal “will provide an opportunity for the Tribunal to express its opinion on promulgation/service as well as what amounts to reasonably practicable”. These matters are not strictly an issue in this appeal. They are however of importance to all parties to appeals within this jurisdiction and to the Tribunal itself. We have the benefit of helpful submissions on the issue from counsel for the appellant. We thought it right to indicate our views.

3. It is common place in most jurisdictions where a court or tribunal has responsibility to serve judgements or orders for those documents to be served on all parties at the same time. That is not the position for claimants who have been refused an application for asylum and appeal against that refusal to this Tribunal.

4. The Asylum and Immigration Tribunal (Procedure) Rule [2005] SI 230 provides for special procedures and time limits in asylum appeals. Rule 23 of those rules provides so far as relevant as follows:

23 (1) This rule applies to appeals under section 82 of the 2002 act
where:-

(a) the appellant is in the United Kingdom; and
(b) the appeal relates, in whole or in part, to an asylum claim…

(4) the tribunal must serve its determination on the respondent:–

(a) if the appeal is considered at a hearing, by sending it not later that 10 days after the hearing finishes; or
(b) or if the appeal is determined without a hearing by sending it not later than 10 days after it is determined

(5) the respondent must:-

(a) serve the determination on the appellant:-

(i) if the respondent makes a section 103A application or applies for permission to appeal under section 103B or 103E of the 2002 Act, by sending, delivering or personally serving the determination not later than the date on which it makes that application; and
(ii) otherwise not later than 28 days after receiving the determination from the Tribunal; and

(b) as soon as practicable after serving the determination, notify the Tribunal on what date and by what means it was served

(6) if the respondent does not give the Tribunal notification under paragraph (5)(b) within 29 days after the Tribunal serves the determination on it, the Tribunal must serve the determination on the appellant as soon as reasonably practicable thereafter.

5. Hence when the Tribunal decides an asylum case it serves the determination only on the respondent in the first instance. The respondent is then required to serve the determination on the appellant. Rule 55 (3) of the AIT Procedure Rules also provides:-

“If a document is served on the appellant, a copy must also at the same time be sent to the appellant’s representative”.

6. The Tribunal’s decision may be challenged by either party on the grounds that the Tribunal made an error of law. An application must be made to the appropriate court for an order requiring the Tribunal to reconsider its decision on the appeal (Section 103A Nationality, Immigration and Asylum Act 2002). There are very tight time limits in which such an application can be made. Section 103A (3) provides:-

(3) An application… 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 five 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…

(c) in the case of an application brought by a party to the appeal other than the appellant, within the period of five days beginning with the date on which he is treated, in accordance with the rules under section 106, as receiving notice of the Tribunal’s decision.

The time limits for applications by appellants outside the United Kingdom are 28 days from the date in which the appellant is treated as receiving notice of the Tribunal’s decision.(Section 103A (3) (b) 2002 Act)

7. Section 103A (4) provides that rules of court may specify days to be disregarded in calculating the five day time limit. The Civil Procedure Rules 1998 as amended are the relevant rules. Rule 2.8 provides that Saturdays, Sundays, bank holidays, Christmas Day and Good Friday do not count in the five day calculation. Nor do days on which the Court Office is closed.

8. Rule 55 of the AIT Procedure Rules makes provision for the filing and service of documents within this jurisdiction. Personal service must be by “leaving” the document with the individual (Rule 55 (2)). Documents served on a person who has notified the Tribunal that he is acting as the representative of a party are deemed to have been served on that party (Rule 55 (4)).

9. There are provisions for calculating the date of service when appeal determinations are served by post or document exchange. Rule 55 (5) provides as follows:-

(5) Subject to paragraph (6) [which deals with personal service] 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.

10. Where an asylum appeal determination has been served by the AIT on the Secretary of State that determination may be served by the Secretary of State on the appellant either personally or by post. But it must be served within 28 days of its receipt from the AIT (Rule 23 (a) (ii) above).

11. It is of the first importance, given the time limits in this jurisdiction that the date of service by the Secretary of State is clear. Where asylum appeal determinations are served by post by the Secretary of State it is consistently the case that the date of posting such determinations is unclear.

12. Such lack of clarity adversely affects any appellant or any appellant’s representatives who wishes to challenge the determination of the Tribunal on the basis of error of law. They cannot be sure as to when the five day time limit ends. The senior immigration judges within the Tribunal who consider review application equally cannot be sure as to when the determination was served by post. This presents significant difficulties in deciding whether the review application was received in time.

13. Subject to the CPR the five days will run from the day after personal service. Where the determination is served by post five days will begin to run, again subject to the CPR, from after the second day on which the document was sent. If an appellant was personally served on Monday 1st October five days starts to run on Tuesday 2nd October. His time limit to make a review application ends on Monday 8th October. Where the determination is served by post on Monday 1st October its deemed receipt will be Wednesday 3rd October. The time limit for making the review application will expire on Wednesday 10th October. This is irrespective of the fact that the determination sent by post might well be received on Tuesday 2nd October.

14. The Immigration Advisory Service who act for the appellant in this matter represent a substantial number of applicants claiming asylum in any one year. In their submission it is commonplace for them to receive asylum appeal determinations from the Home Office virtually invariably with an accompanying letter from the Asylum and Immigration Tribunal. That letter is in a standard form and is numbered AIT75. It is generally dated with the date on which the determination has been sent to the Home Office by the AIT. The Home Office at some stage thereafter post the determination with the AIT75 letter to the appellant and his or her representatives. We were told that in some cases, but certainly not all, the Home Office place a stamp on the determination itself indicating the date on which it is sent to the representatives. They do not include a covering letter. We were also told that as a general rule it is impossible to identify any postage date from the envelope in which the determination is received.

15. In this case the IAS date stamped the standard letter AIT75 with the date on which it and the Tribunal’s determination was received by them. They queried the relevant dates with the AIT. They were told that they should take the date of deemed service in accordance with Rule 55 (5) as being the date on which they received the document. This was wrong. Because of the failure by the respondent to indicate the date on which the determination had been posted it was in fact not possible to calculate the proper deemed date of receipt in accordance with Rule 55 (5).

16. These failures are of great significance where the time limit for challenging the decision of this Tribunal are as restricted as they are. There are further difficulties for the Tribunal operating the review procedure. It is within the knowledge of the Tribunal that in the majority of asylum cases the respondent does not give the Tribunal notification on what date and by what means determinations have been served. This is breaching Rule 23 (5) (b). Senior immigration judges considering time issue limits are not assisted by this failure. A standard letter to the appellant with copies to the appellant’s representatives and the AIT all dated and sent on the day of posting of the determination would remove most of the difficulties.

17. In this case the five day time limit was not met by the appellant’s representatives. The Senior Immigration Judge concluded that the appellant could not reasonably practicably have made the application in time, he extended time and granted the application for reconsideration. It was agreed by all parties before us that the reconsideration hearing was now properly before us.

18. In his reasons for decision the Senior Immigration Judge said “The IAS has advanced pressure of work and staff shortages as the reason why the application could not reasonably practicably have been made within time but, in my judgement, that reason (along with the simple assertion that the application was overlooked) is the almost invariable reason why delays occurred. If these satisfy the reasonably practicable test, the threshold is rendered so low as to afford no effective bar”. We agree with that view although the matter was neither subject to submissions nor argument and so remains a matter which may be raised in the future.

19. The word “Promulgation” has been used for many years within this jurisdiction. It appears on the front sheets of all determinations. It was traditionally completed by the administrative staff within the Tribunal with a date stamp. That stamp was the same date as that on which the determination was served by post on the parties. Where the determination is served by the Tribunal on the respondent alone the date is left blank. In asylum cases any date placed beside the word promulgation on the determination of the Tribunal is unlikely to be of great assistance in deciding when the document was served. It is not a matter for the respondent to add dates to determinations made by the Tribunal.

The appellant’s claim

20. The factual basis for the appellant’s claim is set out in the main in his witness statement and his Home Office interview. In brief he says that he sold pharmaceutical supplies for the use of a rebel group within the DRC led by Thomas Lumbala. This rebel group was in the main supported by Lendu people and they operated in Ituria. Because of this he was arrested by the authorities in Kissingani, ill-treated and threatened with execution. Bribes were paid. He was able to escape. He fled to Kinshasa. He went in to hiding and was eventually smuggled out of the DRC. He went to South Africa, stayed the night there and then came to the United Kingdom where he claimed asylum. The immigration judge did not believe the appellant’s story. He dismissed the appeal.

21. The appellant’s case was that he was at risk of persecution by the authorities in the DRC because he was seen as supplying a rebel group under the control of Thomas Lumbala. In political terms this group was against the government. He was he said at risk of persecution because of his political involvement with the group.

22. The appellant was insistent at all stages that the rebel group his goods were sold to was one led by Thomas Lumbala. They were he told the home office “everywhere in the forests of Ituria.” He told the immigration judge “Thomas Lumbala had appeared on television and that the authorities were targeting anyone with links with Lumbala”.

23. The immigration judge “formed the view that Thomas Lumbala does not exist”. His name was not known to news gathering organisations. There is no reference in the objective evidence to any such group.

24. The immigration judge doubted the appellant’s history of trading with any rebel group. He considered the alleged arrest improbable on the basis of evidence he heard. He did not believe the story of the escape from custody by the appellant. He considered the appellant’s failure to stay in South Africa and to come to the UK suggested a motive other than a simple desire for safety. Overall he regarded the appellant’s claims as a fabrication.

25. It is clear that the objective evidence available to the immigration judge did not establish the existence of either a person called Lumbala or a group led by him. There was no objective evidence to support the existence of this person or group.

26. Counsel submitted that the immigration judge ignored the established legal principle in asylum cases that the absence of objective evidence does not negate the existence of a person or group. Put another way it was counsel’s submission that the adjudicator rejected the existence of Thomas Lumbala and his rebel group because there was no corroboration of that claim. There were, it was submitted, several armed groups of Lendu in Ituria of the DRC. The background country information showed that. The implication was that the Thomas Lumbala group might be one of those armed groups of Lendu.

27. It is clear in our judgement that the appellant’s claim was that Thomas Lumbala was not unknown and not the leader of an unknown group. It is clear from his evidence the group had existed for at least two years. They were, he said, everywhere in the forests of Ituria. Lumbala was hated by everyone. Anybody like himself as he claimed who was associated with a man such as Thomas Lumbala would be killed. The appellant said “I don’t know if you are following the news but he cuts people’s heads so if returned to my country I will be killed and even my mum will die”. The leader had apparently appeared on television.

28. The adjudicator was in our judgement entitled to decide that the Thomas Lumbala group does not exist. There was clearly no objective evidence that the group or the leader existed and given the prominence contended for if true there would be some reference to Thomas Lumbala. We do not agree that the immigration judge disbelieved the appellant because of any lack of any corroborative evidence.

29. We accept and adopt the reasons given by the immigration judge for finding this appellant not credible. We do not see that there has been any error of law in the way in which the immigration judge has analysed the position. We regard the challenges to the determination in this case as set out in the grounds for reconsideration as largely challenging the fact finding made by the immigration judge. He gave clear reasons as to why he regarded the appellant’s claim as not credible. He expressed doubts about a series of aspects of the appellant’s claim. It would have been better had he considered those aspects of the matter more precisely. But the views he expressed particularly concerning the lack of credibility about the Lumbala group are in our view wholly sustainable. We do not regard the immigration judge as having made any error of law.

Decision

30. For the reasons given the decision of the immigration judge in this matter dismissing the asylum appeal and the human rights appeal of this appellant stands.

Mr Justice Hodge OBE
President
16 February 2006