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

An extension of time exceeding two months for filing a notice of appeal is exceptional. The applicant must strictly prove the facts relied on and show that a significant injustice has probably occurred. The passage of time weakens the prospect of relief, even where the applicant is personally blameless. A fresh claim under Rule 353 of the Immigration Rules has no real prospect where the proposed evidence could have been raised earlier, does not show a material deterioration in country conditions and merely restates existing material. Any later removal decision may be challenged on up-to-date evidence.

The appellant, a Chechen national, claimed asylum after arriving in the United Kingdom in 2002. His claim and subsequent appeals were rejected, including on credibility grounds and on the absence of evidence that Chechen men generally faced the claimed risk.

In 2004 he submitted further expert and UNHCR material and asked the Secretary of State to treat it as a fresh claim under Rule 353. The Secretary of State refused, and Bean J dismissed the judicial review claim in the Administrative Court: [2005] EWHC 1993 (Admin). The appellant then sought an extension of nearly seven months and permission to appeal. The central issues were whether the delay justified an extension and whether the proposed appeal had a real prospect of success.

Lord Justice Brooke delivered the judgment, and Lord Justice Buxton agreed. The Court of Appeal dismissed the applications for an extension of time and for permission to appeal.

1. Applying the principle stated in YD (Turkey), a delay of more than two months will be overlooked only in rare and limited cases. The facts justifying so long an extension must be strictly proved, and the court must be satisfied that a significant injustice has probably occurred. Each passing day weakens the prospect of an extension.
2. The delay resulted from serious administrative failures involving the solicitors, the Legal Services Commission and the official transcribers. No blame attached to the appellant personally. That did not, however, establish the required significant injustice. His original asylum claim had been rejected on facts personal to him, and the remaining issue concerned safety on arrival in Russia.
3. There was no real prospect of success on the proposed appeal. The appellant had had ample opportunity to raise the relevant matters during the original appellate proceedings. There was no indication that conditions in Russia had materially deteriorated between 2003 and 2004. The new expert report could have been obtained earlier, while the later UNHCR report restated earlier material. The court therefore declined to undertake a linguistic examination of Rule 353.
4. If forced removal were proposed in the future, the removal directions could then be challenged using up-to-date evidence about conditions in Russia, particularly at Moscow airport, as illustrated by GH v Home Secretary.
5. Administrative delays of this scale were inimical to justice. The court urged the relevant organisations to improve logging, communication and follow-up procedures for urgent appeals.

1. Court of Appeal (Civil Division) — On 11 April 2006, dismissed the applications for an extension of time and permission to appeal: [2006] EWCA Civ 396.
2. Administrative Court — Bean J dismissed the application for judicial review of the Secretary of State’s refusal to admit a fresh claim: [2005] EWHC 1993 (Admin).