Pant v Secretary of State for the Home Department

When permission to appeal is sought after a very substantial and culpable delay, the court must balance the length and effects of the delay against the merits, considering the wider circumstances rather than the underlying appeal alone. The longer the delay, the stronger the merits and explanation must be. A solicitor’s failure to communicate a decision may explain an initial short period, but it does not ordinarily excuse years of inaction where the applicant also had responsibility to keep informed. Procedural defects in the underlying proceedings and the disadvantage of losing refugee status may be insufficient where an alternative human-rights claim remains available and removal is not immediate. Only very exceptional circumstances justify permission after unexplained delay of almost three years.

The appellant, a Nepalese Maoist, claimed asylum in 1997 on the basis of a fear of persecution for her political opinions. The Secretary of State refused the claim. A special adjudicator dismissed her appeal, and the Immigration Appeal Tribunal subsequently declined to remit the matter despite the absence of explicit findings about arrest warrants and did not address the refusal to adjourn.

The appellant sought permission to appeal to the Court of Appeal in 2003, almost three years after the Tribunal’s decision. She relied on the procedural defects, the importance of the warrants, and the consequences of losing refugee status. The central issue was whether those matters justified relief from the delay.

1. Disposition and delay. Scott Baker LJ delivered the lead judgment, and Carnwath and Ward LJJ agreed. The application for permission to appeal was refused. The court had to balance the length and effects of the delay against the merits. The merits were to be understood in the wider sense of the applicant’s overall circumstances, not merely the merits of the proposed appeal. As the delay increased, correspondingly stronger merits and a stronger explanation were required.
2. Explanation and responsibility. The court accepted that the solicitor’s failure to communicate the Tribunal’s decision might explain the first three or four months. It did not explain the subsequent period of complete inaction. The applicant retained responsibility for keeping in touch with her proceedings. Delay of almost three years, substantially unexplained and unjustified, could be overcome only by very exceptional circumstances or a powerful excuse.
3. Underlying procedural merits. The adjudicator had directed the Secretary of State to verify the arrest warrants, but the direction was not complied with. The failure was not properly investigated, the adjudicator made no adequate findings about the first two warrants, and the refusal to adjourn was open to serious criticism. In light of the Asylum Appeals (Procedure) Rules 1996, there was a strong argument that an adjournment should have been granted to secure compliance with the direction. The Tribunal also failed to address that issue and made an unjustified observation that genuine warrants would concern prosecution rather than persecution.
4. The court accepted that Mungu v The Secretary of State [2003] EWCA Civ 369 accurately stated the approach to documentary evidence: the claim must be assessed in the round, with the reliability and weight of documents considered alongside the other evidence. Those procedural matters might have made the proposed appeal arguable, but they did not amount to the exceptional circumstances required after such delay.
5. Consequences of refusal. Refusal of permission would not itself result in immediate removal. The appellant could pursue a claim under the Human Rights Act, including under Articles 3 and 8, with a right of appeal if necessary. The court recognised that such protection might not confer the same status or rights as refugee recognition, as illustrated by Indra Gurung [2002] UK IAT 04870. That disadvantage nevertheless did not outweigh the culpable delay. Order: Permission to appeal refused.

• Court of Appeal (Civil Division): Refused permission to appeal on 21 November 2003 because the delay of almost three years required very exceptional justification and the merits were insufficient.
• Immigration Appeal Tribunal: On 28 April 2000, declined to remit the appeal despite the adjudicator’s lack of explicit findings on the arrest warrants and did not address the adjournment issue.
• Special Adjudicator: Mrs Drummond Farrall dismissed the asylum appeal following the hearing on 2 June 1999. She refused an adjournment and gave no weight to the untranslated warrant.