Tepe v Secretary of State for the Home Department

The Court of Appeal has jurisdiction under Civil Procedure Rules 1998 (CPR 52) to consider an out-of-time application for permission to appeal from the Immigration Appeal Tribunal once the Tribunal has made a decision refusing permission, including for lateness. The power to extend time is truly exceptional. The strict ten-day timetable and the express prohibition on Tribunal extensions require genuinely special circumstances. The court should examine the length and explanation of the delay, supporting evidence, promptness, responsibility between party and solicitor, and the merits. An arguable appeal will not overcome unexplained and prolonged procedural default.

The applicant, a Turkish citizen of Kurdish background, had his asylum claim refused by an Immigration Appeal Tribunal decision notified on 24 July 2003. He applied for permission to appeal 17 days out of time, relying on guidelines concerning Kurdish asylum seekers in Hayser [2002] UKIAT 07083. The Tribunal ultimately confirmed that it had no power to extend the time limit under the Immigration Asylum Appeals Procedure Rules 2003.

The applicant then applied to the Court of Appeal for an extension of time. The central issues were whether the Court had jurisdiction and whether the unexplained delays justified exercising its exceptional power to extend time.

Application dismissed. The Court of Appeal accepted that it had jurisdiction to consider the application for an extension of time, but refused relief.

1. Jurisdiction. Under CPR 52, the Court may consider an out-of-time application for permission to appeal from the Immigration Appeal Tribunal once the Tribunal has made a decision refusing permission. That decision may be a refusal on the merits or a refusal based on the Tribunal’s lack of jurisdiction because the time limit was missed. The Court applied the reasoning in Ozdemir [2003] EWCA Civ 167.
2. Exceptional power. Rule 28 of the Immigration Asylum Appeals Procedure Rules 2003 expressly prevented the Tribunal from extending the relevant time limits. This was a clear indication that the statutory scheme required prompt compliance. The Court’s power to extend time was therefore truly exceptional and should not undermine the strict scheme except in very special circumstances.
3. Relevant considerations. The Court had regard to the checklist in CPR 3.9. Relevant matters included the length of the delay, the explanation and supporting evidence, the diligence of the solicitors, responsibility between the applicant and his representatives, and the merits. The application was 17 days late against a ten-day limit. There was no evidence supporting the explanation for the original delay, a further seven months passed before the solicitors chased the application, and more than a month passed after they knew it had been rejected as out of time. Although the proposed appeal was realistically arguable in light of Hayser [2002] UKIAT 07083, that did not justify an extension.
4. Further guidance. The Court expressed the view, obiter, that a clerk’s letter stating that the Tribunal lacked jurisdiction might constitute a decision triggering the right of appeal, even if it was not made by a legally qualified member. The issue did not arise because the refusal had been confirmed by the Vice-President.

• Court of Appeal (Civil Division): dismissed the application for an extension of time on 26 November 2004.
• Immigration Appeal Tribunal: refused the asylum claim by a decision notified on 24 July 2003. The applicant’s subsequent permission application was out of time, and the Tribunal confirmed that it had no power to extend the time limit under the Immigration Asylum Appeals Procedure Rules 2003.