Tofik, R (on the application of) v Immigration Appeal Tribunal

An application for leave to appeal to the Immigration Appeal Tribunal includes an ancillary application to extend time. The tribunal must give reasons, however concise, when refusing an extension. This duty arises under the applicable procedural rules and, independently, at common law.

A bare statement that the application is “out of time” is insufficient. Where intelligible grounds are advanced, the tribunal must engage with them and explain whether the facts are rejected, do not constitute special circumstances, or make an extension unjust. A blameless immigration appellant is not necessarily fixed with a solicitor’s procedural errors.

The appellant, an Iraqi Kurd, appealed against the refusal of asylum. After an adjudicator dismissed his appeal, his solicitors applied about one month late for leave to appeal to the Immigration Appeal Tribunal. They attributed the delay to two errors within their office and asked for the application to be treated as being in time.

A tribunal vice-president responded only that the application was “Out of time”. Davis J refused permission to seek judicial review, holding that no statutory or common law duty to give reasons arose in the circumstances. The Court of Appeal granted permission and retained the judicial review claim under rule 52.15(4) of the Civil Procedure Rules 1998. The central issue was whether the tribunal had to give reasons for refusing to extend time.

1. The judicial review claim was allowed unanimously. Sedley LJ delivered the judgment, with which Sir Anthony Evans and Thorpe LJ agreed. The tribunal’s decision was quashed and the application was remitted to a different tribunal member.

2. Under rules 17 and 18(10) of the Immigration and Asylum Appeals (Procedure) Rules 2000, the obligation to give reasons for refusing leave encompasses a refusal to extend time under rule 18(3). Once the prescribed period has expired, an application for leave necessarily has two tiers: extension of time and the merits of leave. A refusal will ordinarily decide both. Even a refusal based solely on hopeless merits must be reasoned.

3. The same duty would arise at common law. Lateness may deprive an applicant of access to an appeal, making the extension decision critical. It is an exercise of judgment governed by the general obligation of judicial and administrative decision-makers to explain their decisions succinctly, consistently with English v Emery Reimbold and Strick Ltd [2002] 1 WLR 2409.

4. If an applicant advances nothing capable of explaining the delay, the tribunal may state simply that no reason or excuse has been given. It cannot merely repeat that the application is out of time. Where intelligible grounds are advanced, the tribunal must say whether it rejects the facts, regards them as falling outside “special circumstances”, or accepts special circumstances but considers an extension unjust.

5. The solicitors had advanced intelligible grounds: two candidly admitted office errors for which the appellant was said to bear no responsibility. Ex parte Mehta [1976] Imm AR 38 established that an immigration client is not necessarily fixed with a solicitor’s error when opposing removal, at least where the client bears no responsibility. Whether those errors justified an extension, together with any potential merits of the proposed appeal, was a real issue for the tribunal rather than the court.

6. The tribunal erred in law by failing to give reasons and to engage with the grounds advanced. Its decision of 25 April 2002 was quashed. The extension application was remitted to another tribunal member for redetermination.

1. Court of Appeal (Civil Division): The judicial review claim was allowed unanimously. The tribunal’s refusal to extend time was quashed and the application was remitted to another tribunal member.

2. High Court, Administrative Court: Davis J refused renewed permission to apply for judicial review. He held that there was no statutory or common law duty to give reasons in the circumstances and that the tribunal could conclude that no special circumstances justified an extension.

3. High Court, on the papers: Collins J refused permission. He considered that reasons should have been given but that no conceivable special circumstance had been advanced.

4. Immigration Appeal Tribunal: A single member refused the late application by responding only that it was “Out of time”.