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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Grant, R (on the application of) v Asylum and Immigration Tribunal [2006] EWHC 1608 (Admin) (03 May 2006) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/1608.html Cite as: [2006] EWHC 1608 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		3rd May 2006

1. MR JUSTICE KEITH: The claimant's claim for asylum was refused by the Secretary of State. He appealed to an adjudicator. An adjudicator allowed the appeal. The Secretary of State received notification of that decision on 23rd March 2005. He wished to appeal against the decision to the Immigration Appeal Tribunal, but in the meantime the new regime created by the Asylum and Immigration (Treatment of Claimants etc) Act 2004 had come into force. He therefore decided to apply to the Asylum and Immigration Tribunal for a reconsideration of the decision.
2. The Secretary of State claims that the application for reconsideration was sent to the Asylum and Immigration Tribunal by fax on 7th April 2005. If such a fax was sent, and if it got through to the Tribunal, it would have been sent in time. But the Tribunal claims not to have received it. When the Secretary of State discovered that, he sent a copy of the application to the Tribunal on 9th June 2005. By then, it was out of time. If it was out of time because the original application had not been received by the Tribunal, it is accepted by the Secretary of State that the application for reconsideration can only be considered if the Tribunal thought that "it could not reasonably practicably have been made" within the time limit.
3. On 17th June 2005, the Tribunal granted the application for reconsideration, but it made no reference to time limits. That is the decision of which the claimant claims judicial review. He is concerned that under the new regime the Secretary of State's failure to comply with the time limit will not be addressed when the Tribunal reconsiders the claimant's appeal. This claim for judicial review has therefore been lodged as what is described on the claimant's behalf as a "protective measure" in case it is too late for the Asylum and Immigration Tribunal to address the Secretary of State's failure to comply with the time limit. In those circumstances, the claimant wishes to argue that it was not open to the Tribunal to order a reconsideration of the claimant's appeal without considering the Secretary of State's application for an extension of time. Permission to proceed with the claim was refused by Burton J on the papers, and the claimant now renews his application for permission to proceed with his claim.
4. It is relatively easy to see why the Tribunal did not consider the issue of time limits. If an application is submitted out of time, the party submitting the application must complete Part B, explaining the reasons for the delay, verifying the facts on which reliance is placed and requesting an extension of time. The Secretary of State did not do that, because on 9th June 2005 he submitted a copy of the application which he thought had been submitted in time, no doubt overlooking the fact that Part B had not been completed, although a covering letter dated 9th June 2005 requested an extension of time if one was necessary. That cited the wrong procedural route for an application for an extension of time.
5. In AK and others (Tribunal appeal - out of time) Bulgaria [2004] UKIAT 000201, the Immigration Appeal Tribunal had to address a similar problem under a previous regime. In paragraphs 22 and 23, it said:

"22. Bearing in mind the fact that time can be extended where there are special circumstances, the position must be that a grant of leave to appeal made on an out-of-time application is one which is merely irregular. For that reason, if neither party takes the point about time before the Tribunal issues its final determination, then the irregularity is simply waived and it is too late for an objection to the Tribunal hearing the matter on the ground that the application was out of time. The absence of objection by the Respondent to the appeal proceeding, itself constitutes special circumstances for the Tribunal's implicit extension of time.

23. Where the Respondent does take the point about time, however, the grant of leave to appeal can be seen as conditional upon time being extended. It is an indication of what the decision on the application would be if it were in time. If the applicant demonstrates the existence of special circumstances and persuades the Tribunal to extend time, then the grant of leave to appeal stands. If, on the other hand, there are no special circumstances or the Tribunal declines to exercise its discretion to extend time, the grant of permission is ineffective. But the Respondent cannot waive an irregularity he may know nothing about. So his mere inactivity up to the time of the Tribunal's final determination is unlikely of its own to conclude that point against him."

The claimant does not contend that the reasoning in AK cannot be said to be applicable to the new regime, but he is concerned that it might be held that it is not, especially as the senior immigration judge who granted the application for reconsideration said, when the problem was pointed out to her, that there was nothing she could do.

6. In my judgment, there is no reason why the reasoning in AK should not apply to the new regime. Although the decision of the Asylum and Immigration Tribunal on an application for reconsideration of an appeal is final (see section 103A(6) of the Nationality, Immigration and Asylum Act 2002), that simply means that there is not a further tier of appeal, and that the decision on the application cannot be challenged if the application was in time or if the time for submitting it was extended. It will therefore be for the Asylum and Immigration Tribunal, when reconsidering the claimant's appeal, to decide whether the application was in time, and, if not, whether time should be extended. If it concludes that the application was not in time and that time should not be extended, then the appeal cannot be reconsidered and the adjudicator's decision will stand. It cannot be said that the claimant waived the irregularity. Indeed, the Secretary of State does not contend that he did.
7. For these reasons, I do not believe that the claim has an arguable chance of success, and this renewed application for permission to proceed with the claim for judicial review must be refused.
8. MR JONES: My Lord, I do not know whether it would be an appropriate case to have this permission decision reported. I know that ordinarily it is not the case, but I would have thought this would be beneficial to others.
9. MR JUSTICE KEITH: It is not for me to say whether it should be reported. Are you actually asking me, instead, for an order that the judgment be transcribed?
10. MR JONES: Yes, my Lord.
11. MISS CALLAGHAN: I have no objection to that.
12. MR JUSTICE KEITH: I think it should be transcribed. Not so much so that my words can receive a wider currency but so that the Asylum and Immigration Tribunal, when it reconsiders the appeal, knows what the High Court has said it has to address.
13. MR JONES: Could I also ask for a detailed assessment of the claimant's costs for the benefit of the Legal Aid certificate.
14. MR JUSTICE KEITH: Have you submitted the appropriate form? Normally it is on an undertaking to submit the appropriate notification of public funding within seven days.
15. MR JONES: If it is not with the court then I undertake to do so.