Grant, R (on the application of) v Asylum and Immigration Tribunal

Where an application to the Asylum and Immigration Tribunal is made out of time, the Tribunal must determine whether the application was in time and, if necessary, whether time should be extended. A decision granting reconsideration does not finally determine those questions. The issue may remain conditional until the appeal is reconsidered. If the Tribunal finds that the application was late and that an extension should be refused, the appeal cannot be reconsidered and the earlier adjudicator’s decision stands. A party does not waive the irregularity merely by failing to object where the party was unaware of it.

The claimant’s asylum claim was initially allowed by an adjudicator. The Secretary of State sought reconsideration under the new statutory regime, asserting that an application had been faxed in time. The Tribunal did not receive that fax and received a copy of the application later, outside the time limit. It granted reconsideration without addressing time.

The claimant sought judicial review as a protective measure, arguing that reconsideration could not properly proceed without determining whether the application was timely or whether time should be extended. Permission was refused on the papers, and the claimant renewed the application before the Administrative Court.

1. Application refused. The renewed application for permission to bring judicial review had no arguable prospect of success.
2. The reasoning in AK and others (Tribunal appeal - out of time) Bulgaria [2004] UKIAT 000201 applied equally under the new reconsideration regime. A grant of reconsideration on an out-of-time application is irregular unless time is extended, and the issue remains capable of determination when the appeal is reconsidered.
3. The finality of the Tribunal’s decision under section 103A(6) of the Nationality, Immigration and Asylum Act 2002 means that there is no further tier of appeal. It does not prevent the Tribunal from deciding whether the application was in time or whether time should be extended, provided those questions remain open.
4. The Tribunal therefore had to determine, when reconsidering the claimant’s appeal, whether the Secretary of State’s application was timely and, if not, whether an extension should be granted. If the application was late and an extension was refused, reconsideration could not proceed and the adjudicator’s decision would stand.
5. The claimant had not waived the irregularity. The Secretary of State did not contend that he had, and mere inactivity could not amount to waiver where the irregularity was unknown.

The judgment was ordered to be transcribed so that the Tribunal would know the issues it had to address. The claimant undertook to submit the appropriate public-funding notification within seven days.

Permission to proceed with the judicial review claim was refused on the papers by Burton J. The claimant renewed the application before the High Court (Administrative Court), which refused permission.