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

An appellate tribunal considering an out-of-time asylum appeal must address whether the circumstances are sufficiently special to justify extending time. That inquiry is not confined to the adequacy of a solicitor’s explanation for delay. It may include the denial of any effective opportunity to have a serious asylum or human rights case heard, particularly where the claimant’s vulnerability contributed to the procedural failure.

Judicial review must respect the statutory scheme while recognising the high value of access to justice. Removal from the United Kingdom is not unlawful merely because it causes serious misfortune. In the absence of bad faith, breach of an undertaking or other unlawfulness, removal is not reviewable on that basis.

The claimant, an ethnic Albanian from Kosovo, sought asylum in the United Kingdom. Her appeal before an adjudicator was dismissed in her absence after changes of address and legal representation were not communicated effectively to the Immigration Appellate Authority. The Immigration Appeal Tribunal refused an out-of-time application for leave to appeal, focusing on delay after the claimant’s solicitors received the adjudicator’s determination.

The claimant sought judicial review both of the refusal of leave to appeal and of her removal to Kosovo. The central issues were whether the Tribunal had properly considered the special circumstances relied upon and whether the Secretary of State’s removal was judicially reviewable.

1. The claim for judicial review of the Immigration Appeal Tribunal’s refusal of leave to appeal succeeded. Under rule 18 of the Immigration and Asylum (Procedure) Rules 2000, the Tribunal had power to extend time where special circumstances made it just to do so and to grant leave where there was another compelling reason for the appeal to be heard.

2. The Tribunal had failed to address the important question whether the claimant’s circumstances, viewed as a whole, were sufficiently special. The relevant circumstances included the fact that her appeal had been determined without any effective opportunity for her to be heard, the seriousness of the case she might have had to present, and the physical abuse and resulting changes of address and solicitors which contributed to the procedural confusion. A solicitor’s error does not automatically justify an extension, but it is not necessarily decisive against one.

3. The court could not disregard the statutory scheme simply to achieve broad justice. It nevertheless had to remember the high value attached to access to justice, particularly in asylum cases. The Tribunal’s focus on the absence of an explanation for the period after April 2002 did not show that it had considered the broader circumstances. Its decision was therefore quashed.

4. The challenge to the Secretary of State’s removal failed. The removal was not carried out in bad faith, did not breach an undertaking and was not otherwise unlawful. Judicial review could not be granted merely to redress an unfortunate chain of events.

5. The court expressed the view that justice required the claimant to have a proper opportunity to present her case through advisers able to communicate with her, but made no formal order concerning that matter. Costs were dealt with by no order, save for detailed assessment of the claimant’s costs.

• Immigration Appeal Tribunal: refused the claimant’s out-of-time application for leave to appeal against the adjudicator’s determination.
• High Court (Administrative Court): quashed the Tribunal’s refusal because it had not considered whether the claimant’s wider circumstances were sufficiently special, but dismissed the challenge to her removal.