Khalfi, R (on the application of) v Immigration Appeal Tribunal & Anor

The three-month period for seeking judicial review is not absolute, but an applicant must explain delay. Prolonged inactivity, particularly where the applicant made no enquiries about a pending appeal, may justify refusing an extension of time. The court may assess the merits before deciding the extension application. Permission to appeal should be refused where the proposed challenge has no real chance of success. A late, unsupported assertion that an asylum hearing proceeded without notice, combined with no evidence supporting the underlying protection claim, may be wholly unmeritorious.

The applicant, an Algerian citizen, sought permission to appeal against Newman J's decision of 31 March 2003 refusing a renewed application for permission to bring judicial review. The proposed review challenged a special adjudicator's dismissal, on 8 September 2000, of the applicant's asylum appeal. The adjudicator had heard the appeal in the applicant's absence under the Asylum Appeals (Procedure) Rules 1996, having been satisfied that notice had been given. The applicant later alleged, for the first time at the oral renewal before Newman J, that neither he nor his representative had been notified. He also relied on risk on return to Algeria. The Appellant's Notice was filed outside the seven-day period, so an extension was required. The central issues were the prospects of the proposed appeal and whether the delay should be excused.

Lord Justice Keene gave the judgment. The applications for permission to appeal and for an extension of time were refused.

1. The court considered the merits of the proposed appeal before deciding whether to extend time. The proposed appeal had no real chance of success.
2. The three-month period for seeking judicial review was not an absolute limit, but the delay required explanation. The applicant had lodged his asylum appeal in July 1999, yet apparently made no enquiries about its progress for more than three years. Judicial review was sought only after removal directions were issued in November 2002, and more than two years after the adjudicator's decision.
3. The claim form did not initially allege that the applicant had not been notified of the adjudicator's hearing. That allegation was raised only at the oral renewal before Newman J. The court found no credible explanation for the prolonged lack of curiosity and rejected the assertion as incapable of providing a realistic basis for the challenge. The adjudicator had proceeded in the applicant's absence after being satisfied that notice had been sent and under Rules 33(2) and 33(3) of the Asylum Appeals (Procedure) Rules 1996.
4. There was also no evidence that the applicant would face a risk of persecution if returned to Algeria. The application was therefore thoroughly unmeritorious, and both the requested extension and permission to appeal were refused.

• Court of Appeal (Civil Division): On 15 August 2003, Lord Justice Keene refused permission to appeal and an extension of time: [2003] EWCA Civ 1224.
• High Court of Justice, Queen's Bench Division, Administrative Court: On 31 March 2003, Newman J refused the renewed application for permission to apply for judicial review.
• Special adjudicator: The applicant's asylum appeal was dismissed on 8 September 2000 after the hearing proceeded in his absence.