MK (Iran), R (on the application of) v The Asylum & Immigration Tribunal & Ors

An extension of time under rule 10(5) requires special circumstances making refusal unjust. That criterion is distinct from the exceptional-circumstances test governing the admission of fresh evidence.

In deciding whether to extend time, a tribunal should consider the explanation for delay and supporting evidence, the strength of the substantive grounds, the consequences of refusal, and the applicant’s circumstances, including detention and access to legal advice. Strong grounds cannot replace timeliness, although they may compensate for a weak explanation where it is properly supported. Judicial review is unwarranted where an inadequate explanation would have produced the same result even if other factors had been expressly addressed.

The applicant, an Iranian national, received notice of a decision to deport him while detained in prison. His notice of appeal was lodged more than five weeks late. An immigration judge refused to extend time. Burton J refused judicial review, holding that the immigration judge was entitled to find no special circumstances and refusing to admit fresh evidence.

On a renewed application for permission to appeal, following refusal on the papers by Carnwath LJ, the Court of Appeal considered whether the wrong test had been applied and whether relevant matters, including detention and the asserted risks under Articles 2 and 3, had been overlooked. The central issue was whether the immigration judge’s decision had a real prospect of being successfully challenged.

Application refused. The renewed application for permission to appeal had no real prospect of success.

1. Rule 10(5) required consideration of whether special circumstances made it unjust not to extend time. Special circumstances were not the same as exceptional circumstances. The question of precisely how the two standards differed did not arise because the immigration judge had purported to apply the special-circumstances test.

2. Burton J had misdirected himself when considering the fresh evidence by repeatedly asking whether there were exceptional circumstances. That was the test relevant to admitting fresh evidence, not the test under rule 10(5). However, he had correctly considered at paragraphs 20 and 22 whether the immigration judge was entitled to find that there were no special circumstances.

3. In applying rule 10(5), the tribunal should consider the explanation for delay and any supporting evidence, the strength of the substantive grounds, and the consequences of refusing an extension, particularly where refusal may lead to removal. The circumstances of detention and access to legal advice may also be relevant. The guidance in BO & Ors (Extension of Time for Appealing) Nigeria, [2006] UKAIT 00035, that good grounds cannot substitute for timeliness but may compensate for a weak excuse where the application is properly supported, was adopted as helpful.

4. The immigration judge’s reasons were brief, but the explanation for delay was also inadequate and unsupported by evidence. The judge was entitled to regard the applicant’s general language and representation difficulties as insufficient, particularly when many applicants in similar circumstances lodged appeals in time. Although the immigration judge had arguably failed expressly to address the asserted Article 2 and 3 risks and the distinction between prison detention and immigration detention, those matters could not have changed the result. The appeal grounds were only a bare assertion and outline, while the explanation for delay carried little or no weight.

5. The refusal to admit fresh evidence was not challenged. The application was therefore refused.

1. Court of Appeal (Civil Division) — The renewed application for permission to appeal was refused: [2007] EWCA Civ 554.
2. High Court, Administrative Court — Burton J refused judicial review of the immigration judge’s refusal to extend time.
3. Permission stage — Carnwath LJ refused permission on the papers before the renewed application.