IMMIGRATION—PRACTICE—SOLICITORS

Court of Appeal, Civil Division
Buxton, Rix and Moses LJJ
13 March 2007

When considering whether or not to grant an application for extension of time for the filing of an appellant’s notice where permission to appeal has already been granted by the Asylum and Immigration Tribunal (AIT), but the notice of appeal has not been served in time, there should be a presumption that where the AIT has granted permission to appeal to the Court of Appeal the appeal ought to be heard. The court has also given general guidance regarding such cases.

George Brown (instructed by Miles Hutchinson & Lithgow) for the applicants.
Philip Coppel (instructed by the Treasury Solicitor) for the Secretary of State for the Home Department.

Two cases before the court raised an issue involving applications for extension of time (EOT) for the filing of an appellant’s notice where permission to appeal had already been granted by the AIT. In each case the delay leading to the requirement of an EOT was the fault of the appellants’ solicitors, who had failed to serve notices of appeal in time.

LORD JUSTICE BUXTON:

Guidance about EOT was given by the Court of Appeal in YD (Turkey) v Secretary of State for the Home Department [2006] EWCA Civ 52, [2006] All ER (D) 107 (Feb). That guidance was expressed in general terms, which were binding to the extent that they applied to the facts in issue.

YD (Turkey) was a case in which it was sought to stay removal directions when not only had no permission to appeal been granted by the AIT, but the AIT had not even been applied to within the time limit. That meant that under the legislation the AIT could not consider the application, which had to be made to the Court of Appeal.

These cases were different from any that have previously been before this court. Two factors stood out: 

• Permission to appeal had already been given by a senior immigration judge.
• Failure to pursue that permission, leading to the need to apply for EOT, was the (serious) fault of the applicants’ lawyers, and not of the applicants themselves.

A grant of permission to appeal by the AIT was not, of course, conclusive about whether the appeal would eventually succeed, or whether, to use the language of YD (Turkey), the applicant had a strong case that his appeal would ultimately be successful. But considerable weight had to be given to the view of the senior immigration judges, specialists who dealt with those matters on a daily basis. If the faults of the applicants’ lawyers were permitted to be dispositive, then the judgment of those senior immigration judges would have been frustrated without having been substantively tested in the Court of Appeal.

In the present, limited, category of case his Lordship would therefore adopt the following principles:
(i) There should be a presumption that where the AIT had granted permission to appeal to the Court of Appeal the appeal ought to be heard.
(ii) If a procedural fault caused the court to have to consider whether the appeal should proceed, the presumption might be displaced if it could be shown that the decision of the immigration judge was plainly wrong, in the sense that it was clear that failure to pursue the appeal would not lead to the UK being in breach of its international obligations. The court on a preliminary application, such as the present, would have to make that assessment without actually hearing the appeal, but the inquiry was likely to come close to being in substance an appeal rather than just an application.
(iii) Length of delay, when caused by legal representatives, should not be relevant.
(iv) Where delay had been caused by the applicant the court was likely to look carefully at the light that shed on the credibility of the assertion that the applicant had a good claim for international protection. At the same time, the court would remind itself that if, after that scrutiny, such a claim was established, then the claimant was indeed entitled to international protection despite the domestic court’s disapproval of his conduct or his way of promoting his case. That necessarily followed from Danian v SSHD [2000] Imm AR 96, [1999] All ER (D) 1167.

His Lordship then went on to grant the applications on the facts.

His Lordship also made some general observations. First, it appeared to be the AIT’s practice to notify grants of permission to appeal to the Court of Appeal simply by sending out the grant with a formal covering letter. Although solicitors should not need to be told, it would help to avoid what happened in these cases if the covering letter drew forceful attention to the requirement of filing the appellant’s notice within 14 days. That was certainly desirable in the case of a litigant in person.

Second, in circumstances where the usual sanction for negligence by legal advisers, a negligence suit by the client, was not available, other controls had to be used. The inattention of both firms of solicitors in these cases was not only the provision of inadequate professional services to their clients, but also a serious failure to discharge their duties to the court. In any future cases of delay the court would not hesitate to make references to the solicitor’s professional body and, as a reference by a court, would expect the matter to be taken seriously. In addition, the Legal Services Commission would need in such cases to consider seriously whether it could properly continue to support poor service with public funds.

Third, the effect of delay, in a case where the appeal ultimately failed, was unmeritoriously to prolong the appellant’s stay in the UK. That was a burden on public funds. Applicants should not, however, be unwise enough to assume that such an extension of stay would improve their position in any application under Art 8 of the European Convention on Human Rights.

Fourth, because of the particular issues that arose when permission to appeal had already been granted, it would be easier in future in such cases if the application for EOT was listed with appeal to follow.

Lords Justices Rix and Moses agreed.