Erdogan, R (on the application of) v Secretary Of State For Home Department

For the purposes of asylum support, an appeal remains pending when an application for permission to appeal out of time has been received by the Immigration Appeal Tribunal, even though an extension of time is required and has not yet been granted. The possibility of an out-of-time appeal is ignored under section 104(2)(b) of the Nationality, Immigration and Asylum Act 2002, but an application already filed constitutes an instituted appeal under section 104(2)(a). The applicant therefore remains an “asylum-seeker” within section 94 and may apply for support under section 95 of the Immigration and Asylum Act 1999. The claim for judicial review succeeded and the withdrawal decisions were quashed.

The claimant, a Turkish Kurd, claimed asylum and received support under section 95 of the Immigration and Asylum Act 1999. Her asylum appeal to an adjudicator was dismissed. Before expiry of the time limit for seeking permission to appeal, her solicitors posted an application to the Immigration Appeal Tribunal, but industrial action delayed its receipt until after the deadline. The Tribunal sought an explanation for the delay and had not determined the application.

The Secretary of State treated the asylum claim as finally determined and withdrew support. The central issue was whether an application for permission to appeal out of time, received by the Tribunal but awaiting an extension of time, meant that the claimant’s appeal was pending and that she remained an “asylum-seeker” eligible to apply for support.

1. Claim succeeded. The Secretary of State’s decisions withdrawing and refusing asylum support were quashed. The claimant was awarded her reasonable costs, subject to assessment if not agreed, and leave to appeal was granted.
2. Section 94(3) of the Immigration and Asylum Act 1999 provides that an asylum claim is determined, where an appeal has been brought, when the appeal is disposed of. Under section 94(4), an appeal is disposed of when it is no longer pending for the purposes of the Immigration Acts.
3. Section 104(2)(b) of the Nationality, Immigration and Asylum Act 2002 requires the possibility of an out-of-time appeal with permission to be ignored when deciding whether an appeal may be brought. It does not require an application already filed with the Tribunal to be treated as though it had never been instituted.
4. The distinction advanced between an application for permission filed in time and one filed out of time was not justified by the statutory language. Once the claimant’s application was received by the Tribunal, she had instituted an appeal within section 104(2)(a), notwithstanding the need for an extension of time. Her appeal was therefore pending and she was an “asylum-seeker” entitled to apply for support under section 95 of the Immigration and Asylum Act 1999.
5. The conclusion was supported by the 2003 Rules, under which an out-of-time application was not treated as a nullity, and by the prescribed form, which provided for grounds seeking an extension of time alongside the grounds of appeal. The court also observed that expedited consideration of such applications merited attention because delay could cause practical hardship.

The judgment itself records the claimant’s earlier asylum appeal to an adjudicator and her pending application to the Immigration Appeal Tribunal. This was a first-instance judicial review decision. Leave to appeal to the Court of Appeal was granted.