Secretary of State for the Home Department v Makke

An applicant seeking a substantial extension of time to appeal against an adverse asylum determination must address the merits of the proposed challenge. It is insufficient to show that procedural failures deprived the applicant of a hearing, even where the applicant was personally blameless and seeks only remission for a fresh hearing. Under the Immigration and Asylum Appeal (Procedure) Rules 2003, the proposed appeal must have a real prospect of success, or another compelling reason must justify it. Grounds must identify material errors and explain their effect. These requirements reflect the principle that cases are decided on their merits. The position might differ where the underlying determination contains a plain error, but no extension is justified where it appears sound and no arguable merits challenge is identified.

The Secretary of State appealed against Wilson J’s decision of 21 June 2004, which quashed the Immigration Appeal Tribunal’s refusal to grant permission to appeal out of time. The respondent, a Sudanese asylum seeker, had not attended the adjudicator’s hearing because neither he nor his current solicitors knew the hearing date. The adjudicator dismissed the asylum appeal after considering the material before her. The respondent later sought permission to appeal solely on the procedural ground that he had been denied an opportunity to present his case, without identifying any error in the asylum determination. The central issue was whether the procedural failure and absence of personal fault justified an extension of time when the underlying decision appeared sound.

1. Appeal allowed. Pill LJ, with Mance LJ and Keene LJ agreeing, held that the respondent’s application for an extension of time failed because he never addressed the merits of any challenge to the adjudicator’s decision.
2. The court assumed that the respondent was not personally at fault for his non-attendance or the subsequent delay, and that the failings of his solicitors should not be attributed to him. Procedural failures by the Immigration and Nationality Directorate and Immigration Appellate Authority could in an appropriate case justify extending time where strict enforcement would cause injustice. They did not, however, remove the need to show merit in the proposed appeal.
3. Rules 17(3), 18(2) and 18(4) of the Immigration and Asylum Appeal (Procedure) Rules 2003 were substantive requirements. Grounds had to identify relevant errors in the adjudicator’s determination and explain their material effect. The Tribunal was not required to consider omitted grounds, and permission could be granted only where the appeal had a real prospect of success or another compelling reason justified a hearing.
4. The court followed the approach in Simeer v Immigration Appeal Tribunal [2003] EWHC (Admin) 2683. A procedural complaint alone was insufficient. An applicant seeking remission to an adjudicator still had to address the merits of the proposed challenge. The Tribunal had therefore adopted the correct approach.
5. Nazarina did not establish a contrary principle. Its procedural outcome, reached without reference to the merits, did not justify granting permission in this case. The court noted that the position might differ where there was a plain error on the face of the adjudicator’s determination.
6. The merits-based principle was not confined to immigration proceedings. Analogous civil procedure provisions also require a reasonable prospect of success where a judgment or order made in a party’s absence is challenged. The Tribunal’s refusal of permission was upheld.

• Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal and upheld the Tribunal’s refusal of permission to appeal out of time: [2005] EWCA Civ 176.
• Administrative Court: Wilson J quashed the Immigration Appeal Tribunal’s refusal of permission on 21 June 2004.
• Immigration Appeal Tribunal: Refused permission to appeal out of time from the adjudicator’s determination.
• Adjudicator: Dismissed the respondent’s asylum appeal after determining it without a hearing.