YD (Turkey) v Secretary of State for Home Department

The Court of Appeal has an inherent jurisdiction to prevent its proceedings from being rendered ineffective. It may order the Secretary of State not to remove an applicant while an out-of-time application for permission to appeal is determined.

The power will be exercised only exceptionally. The prospects of obtaining an extension and permission are important. A delay of two months or more will rarely be excused. The applicant must show that significant injustice has probably occurred and that relief is just under Civil Procedure Rules 1998, rule 3.9. A strong prospect of ultimate success in challenging the immigration decision will ordinarily be required.

The appellant, a Turkish Kurd, claimed asylum on arrival in the United Kingdom. A second adjudicator allowed his appeal because a published photograph allegedly exposed him to danger from the Turkish security forces. The Immigration Appeal Tribunal allowed the Secretary of State’s appeal on 28 January 2005, relying on doubts about whether the appellant could be identified in the photograph.

The appellant applied about nine months late for permission to appeal. The Asylum and Immigration Tribunal declined jurisdiction, after which he applied to the Court of Appeal. Removal directions had by then been set and temporarily restrained.

The court considered whether it could prevent removal while deciding an out-of-time application, and whether the appellant should receive an extension of time and permission to appeal.

1. The application was dismissed. The Court of Appeal nevertheless declared that it possessed an inherent jurisdiction to require the Secretary of State, as a party to the proceedings, not to remove an applicant while an out-of-time application for an extension and permission to appeal was being determined. The order preserves the applicant’s presence within the jurisdiction so that the court’s process is not rendered ineffective. It is not an ordinary stay of the tribunal’s determination or of proceedings.

2. No statutory stay arose before permission to appeal was granted. Under sections 78 and 104 of the Nationality, Immigration and Asylum Act 2002, the underlying appeal had been finally determined when the prescribed period expired. Judicial review of removal directions in the Administrative Court remained possible, but concurrent proceedings would be inconvenient, expensive and contrary to efficient procedure.

3. The inherent power will be exercised only exceptionally. The likelihood that the court will grant both an extension and permission is a very important consideration. Every day after the tribunal loses jurisdiction weakens the application. An extension of two months or more will be rare and requires probable significant injustice.

4. An extension depends on all the circumstances, including the considerations in rule 3.9 of the Civil Procedure Rules 1998. Finality is a fundamental principle. Out-of-time appeals are a rare exception whose supporting facts must be strictly proved. Where delay is substantial, the applicant must present a strong case that the challenge to the original immigration decision is likely ultimately to succeed.

5. Although a timely application would have justified permission, the nine-month delay and the weak prospects of ultimate success outweighed the appellant’s explanation. At most, an appeal could have produced a remittal for reconsideration years after the photograph’s publication. The prospects on remittal were insufficient to justify the exceptional extension.

Moore-Bick and Wilson LJJ agreed with Brooke LJ.

1. Court of Appeal (Civil Division): In [2006] EWCA Civ 52, declared that it had inherent jurisdiction to prevent removal while an out-of-time application was determined, but dismissed the application for an extension of time and permission to appeal.
2. Immigration Appeal Tribunal: Allowed the Secretary of State’s appeal on 28 January 2005 and set aside the second adjudicator’s decision. No citation is stated.
3. Adjudicator: Allowed the appellant’s asylum appeal on 13 January 2004. No citation is stated.