Ozdemir v Secretary of State for the Home Department

A tribunal’s rejection of an out-of-time application for permission to appeal counts as a refusal for the purpose of a statutory provision permitting a renewed application to the Court of Appeal. Clear words are required before procedural rules will be construed as excluding access to that appellate jurisdiction.

Where the tribunal rejects the application without considering its merits, the special 14-day period running from notice of its permission decision does not apply. The applicant must obtain an extension under the general appellate rules. Exceptional circumstances, including reliance on solicitors’ assurances followed by prompt action upon discovering their failure, may justify an extension.

The applicant’s asylum appeal was dismissed by a special adjudicator and subsequently by the Immigration Appeal Tribunal. Her former solicitors allegedly assured her that they would apply for permission to appeal. No application was lodged within the ten-day period prescribed by the Immigration and Asylum Appeals (Procedure) Rules 2000.

The Tribunal rejected her late application because it lacked jurisdiction to consider it. She then applied to the Court of Appeal for permission to appeal and, as the proceedings developed, for an extension of time.

The principal questions were whether the Tribunal’s procedural rejection constituted a refusal engaging paragraph 23(2) of Schedule 4 to the Immigration and Asylum Act 1999, which appellate time limit applied, and whether an extension and permission should be granted.

1. The extension of time and application for permission to appeal were granted unanimously. Lord Justice Mance delivered the judgment, with which Mr Justice Hooper agreed.

2. For paragraph 23(2) of Schedule 4 to the Immigration and Asylum Act 1999, any rejection by the Immigration Appeal Tribunal of an application for permission to appeal constitutes a refusal. This includes a rejection on jurisdictional or administrative grounds caused by non-compliance with procedural rules. Such a refusal gives the Court of Appeal jurisdiction to consider permission. Clear words would be required before rules made under a general rule-making power could preclude both an application to the Court of Appeal and the Court’s ordinary power to extend time.

3. The special time provision in paragraph 21.7 of the appellate Practice Direction applies only where the Tribunal has disposed of the permission application on its merits. It does not apply where the Tribunal rejects an out-of-time application for lack of jurisdiction. The general period under rule 52.4 of the Civil Procedure Rules 1998 therefore applied, calculated from the Tribunal’s substantive decision. The applicant required an extension under rule 52.6.

4. The applicant had relied upon assurances that her former solicitors would lodge the application. Upon learning that they had not done so, she instructed new solicitors promptly, and they acted diligently despite difficulties obtaining the papers. Nothing in the available material cast doubt upon that account. Those exceptional circumstances justified extending time.

5. The proposed appeal had a real prospect of success. The special adjudicator had misunderstood material evidence when assessing credibility, although the Tribunal accepted that error and regarded the remaining reasons as sufficient. It was arguable that the Tribunal had merely concluded that the adjudicator could have reached the same result, without deciding whether the corrected cumulative assessment would in fact have produced that result. The applicant was also permitted to raise the subsidiary issue concerning risk arising from family connections.

1. Court of Appeal (Civil Division): In [2003] EWCA Civ 167, treated the Tribunal’s procedural rejection as a refusal, extended time and granted permission to appeal. The substantive appeal was not determined.
2. Immigration Appeal Tribunal: By a determination dated 7 August 2002, declined to consider the late application for permission to appeal because it lacked jurisdiction. In its substantive decision dated 29 May 2002, it had dismissed the appeal and upheld the adverse credibility finding.
3. Special adjudicator: Dismissed the applicant’s asylum appeal on 31 October 2001, principally because her account was not accepted as credible.