Kamau, R (on the application of) v Secretary of State for the Home Department

Under the Immigration and Asylum Appeals (Procedure) Rules 2000, a faxed application for permission to appeal is not received merely when the fax reaches the tribunal’s machine. Receipt also requires receipt by a person employed as a clerk by the tribunal. An applicant should check for the tribunal’s acknowledgement, particularly where the application is made shortly before the deadline. Administrative delay may be addressed by an extension of time in special circumstances, but an applicant must prosecute the application. Removal is unlawful only if a valid outstanding application for permission exists.

The claimant, an asylum seeker, challenged removal directions issued after the Immigration Appeal Tribunal appeared not to have logged a faxed application for permission to appeal against an adjudicator’s determination. The fax had been sent within the ten-day period, but the claimant’s solicitors did not follow up the application for nearly two years.

The claimant sought declarations that the removal directions were unlawful and that the application for permission remained undetermined, together with an order requiring the Tribunal to determine it. The central issue was whether the fax constituted receipt of the application under the 2000 Rules.

1. The application was dismissed. The claimant had no outstanding application for permission to appeal, so the Secretary of State’s removal directions were not unlawful on that basis.
2. Rule 18 required an application for permission to appeal to be made within ten days. Rule 46 permitted service by fax. However, rule 48 defined receipt by the appellate authority. A fax had to arrive at the tribunal and be received by a person employed as a clerk by the tribunal. The fax receipt established transmission, but there was no evidence of receipt by a clerk. The Deputy President’s evidence established that the application had not been received and logged.
3. The court recognised the potential for injustice where a document was sent but not processed by tribunal staff. That concern did not alter the construction of the Rules. The tribunal’s acknowledgement procedure made it reasonable to expect experienced representatives to check whether an application had been received, especially when no acknowledgement was supplied.
4. Rule 18(3), permitting an extension of time where special circumstances made it just, provided a means of accommodating administrative delay or other properly explained circumstances. It did not justify leaving an application unattended for approximately two years. The claimant’s solicitors had put away the file and had not pursued the application.
5. The judicial review claim therefore failed and was dismissed. A detailed assessment of publicly funded costs was permitted, and a costs order was made not enforceable until further order.

The judgment itself records the claimant’s appeal before an adjudicator, whose determination was promulgated on 4 June 2001. An urgent application later led to a temporary stay of removal directions and permission for judicial review. This Administrative Court then dismissed the judicial review claim.