BR (Iran) v Secretary of State for the Home Department

Where the Asylum and Immigration Tribunal has granted permission to appeal to the Court of Appeal, there is a presumption that the appeal should be heard. A procedural default may displace that presumption only where the permission decision was plainly wrong, so that abandoning the appeal would clearly cause no breach of the United Kingdom’s international protection obligations.

Where legal representatives caused the default, the length of delay is irrelevant. An applicant’s own delay may bear on the credibility of the protection claim, but cannot defeat an established entitlement to international protection. The court must balance prompt and effective immigration control against the proper investigation of claims engaging the Refugee Convention.

The court considered together applications by BR and MD, Iranian asylum claimants, to extend time for filing appellant’s notices. In each case, the Asylum and Immigration Tribunal had granted permission to appeal, but the claimant’s solicitors failed to file the notice within the required 14 days.

BR’s notice was 16 months late. The proposed appeal concerned an immigration judge’s failure to address documents said to support BR’s claimed association with the Kurdish Democratic Party of Iran. MD’s notice was approximately seven and a half months late. His proposed appeal concerned findings about his activities for UFIN and whether those activities might attract the Iranian authorities’ adverse attention.

The court confined itself to whether time should be extended. The central issue was the approach to delay caused by legal advisers where a specialist tribunal had already granted permission to appeal.

1. The applications were granted and time was extended in both cases. The court had to balance the public interest in fair, firm and prompt immigration control against the United Kingdom’s obligation under the Refugee Convention to investigate properly claims which may justify international protection. Ordinary private-litigation principles concerning finality and responsibility for lawyers’ defaults could not be transferred without qualification to asylum proceedings.

2. Where the Asylum and Immigration Tribunal has already granted permission to appeal, there is a presumption that the appeal ought to be heard. Considerable weight must be given to the assessment of a Senior Immigration Judge with specialist experience. A grant of permission is not conclusive of ultimate success, but a representative’s procedural failure should not ordinarily prevent that assessment from being tested.

3. The presumption may be displaced where the permission decision was plainly wrong. The court must be satisfied that failure to pursue the appeal would clearly cause no breach of the United Kingdom’s international obligations. Although that assessment is made on the extension application, it may approach consideration of the substance of the proposed appeal.

4. Where legal representatives caused the delay, its length is irrelevant within this limited category. Where the applicant caused it, the court may examine what the delay indicates about the credibility of the protection claim. Nevertheless, an applicant who establishes such a claim remains entitled to international protection despite the court’s disapproval of the applicant’s conduct.

5. BR’s proposed appeal was sufficiently arguable because the immigration judge needed to address material documents bearing on whether he was perceived as a political activist. MD’s case was closer to the threshold, but the Senior Immigration Judge was entitled to regard the findings about his UFIN activities and the absence of risk as arguably inconsistent. Neither permission decision was plainly wrong.

6. The substantive appeals were to be heard promptly and de novo by a differently constituted court. As practical guidance, future applications of this particular kind should ordinarily be listed with the appeal to follow.

1. Court of Appeal: Granted both applications for extensions of time to file appellant’s notices. The substantive appeals were directed to be heard promptly and de novo by a different constitution: [2007] EWCA Civ 198.

2. Asylum and Immigration Tribunal—BR: Granted permission to appeal on 10 August 2005 because the failure to address relevant documentary evidence arguably constituted a material error of law.

3. Asylum and Immigration Tribunal—MD: Granted permission to appeal on 11 May 2006 because the immigration judge’s findings concerning the UFIN website and the risk arising from MD’s activities were arguably unclear or inconsistent.