Secretary of State for the Home Department, R (on the application of) v The Immigration Appeal Tribunal

A person who lodges a notice of appeal to an adjudicator out of time remains a party to an appeal for the purposes of the statutory right of appeal to the Immigration Appeal Tribunal. The adjudicator’s decision whether to extend time is therefore a determination capable of appeal on a point of law.

The procedural rules may assist statutory construction where the statutory language is open to more than one interpretation. The position differs from an out-of-time application for permission to appeal to the Tribunal, because the rules treat a late notice of appeal to an adjudicator as a notice of appeal rather than as a separate permission application.

The Secretary of State sought judicial review of the Immigration Appeal Tribunal’s decision that it had jurisdiction to hear an appeal against an adjudicator’s refusal to extend time for appealing against an immigration decision.

The dispute concerned the construction of sections 101, 102 and 104 of the Nationality, Immigration and Asylum Act 2002, together with the Immigration and Asylum Appeals (Procedure) Rules 2003. The Secretary of State relied particularly on B (Zimbabwe) [2004] UK IAT 00076 and Erdogan [2004] EWCA Civ 1087. The central issue was whether an out-of-time notice of appeal to an adjudicator constituted an appeal and whether the adjudicator’s decision on extension of time was appealable to the Tribunal.

1. The claim was dismissed. The Immigration Appeal Tribunal had jurisdiction to hear an appeal against an adjudicator’s refusal to extend time for an appeal to the adjudicator.
2. Section 101(1) of the Nationality, Immigration and Asylum Act 2002 permits a party to an appeal to an adjudicator under section 82 or 83 to appeal to the Tribunal with permission against the adjudicator’s determination on a point of law. The use of “determination” in section 101(1), and “decision” in section 102(1), indicated that the terms were being used synonymously.
3. The 2003 Rules treated a late notice of appeal to an adjudicator as a notice of appeal. Rule 10 required the appellant to give reasons for lateness and provided for the respondent or adjudicator to decide whether time should be extended. The language of the Rules therefore supported treating the person lodging the notice as a party to an appeal.
4. The position was different for an appeal to the Tribunal. Rules 14 and 15 distinguished an appeal from an application for permission to appeal, including an application made out of time. Erdogan [2004] EWCA Civ 1087 concerned that different procedural stage and did not govern appeals to an adjudicator.
5. B (Zimbabwe) [2004] UK IAT 00076, decided under the earlier legislation and rules, was not persuasive insofar as it relied on perceived risks of abuse to construe the statutory provisions. Statutory construction should not be driven by fears of abuse, particularly where abusive claims could be dealt with promptly.
6. The Tribunal’s conclusion that the omission of the former restrictive definition of “determination” widened the appeal jurisdiction under the 2002 Act and 2003 Rules was correct.

The judgment itself records no prior court decision in the same litigation. It reviewed the Immigration Appeal Tribunal’s decision notified on 7 July 2004 and upheld its jurisdictional conclusion.