AD (Serbia) v Secretary of State for the Home Department

A party will generally be unable to raise in the Court of Appeal a point of law not advanced below, particularly where the appeal is lodged substantially out of time. An arguable point of wider importance does not justify an extension of time where it could not affect the result on the evidence. The court considered that possession of a Class A drug with intent to supply was a particularly serious offence, that the evidence established continuing danger to the community regardless of the burden of proof under the Nationality Immigration and Asylum Act 2002, and that the safety assessment was not burden-based. The applications were refused.

The appellant challenged the Secretary of State’s decision to deport him following criminal convictions. The decision relied on Article 33(2), section 72 of the Nationality Immigration and Asylum Act 2002 and paragraph 364 of the Immigration Rules. An immigration judge dismissed the appeal, including claims under Article 8 and concerning safety on return to Kosovo. Reconsideration was limited to whether the appellant had rebutted the section 72(4) presumption that he was a danger to the community. The AIT dismissed the reconsideration application, and the time for appealing expired on 26 October 2007. The appellant later sought an extension of time and permission to appeal on new statutory and Convention grounds. The central issue was whether those points should be entertained for the first time in the Court of Appeal.

Applications refused. The Court of Appeal declined to extend time and refused permission to appeal.

1. It was generally impermissible to raise in the Court of Appeal a point of law that had not been raised at any earlier stage. The objection was particularly strong where the proposed appeal was filed about five months after the time for appealing had expired. The new grounds had also been introduced shortly before the hearing, after the original ground had been abandoned.
2. The proposed challenge to section 72 and the related 2004 order was arguable and potentially important, but that did not justify an extension of time. The court considered whether the points could affect the result. It concluded that possession of a Class A drug with intent to supply was a particularly serious offence and that there was ample evidence that the appellant remained a danger to the community, whichever party bore the burden of proof.
3. The complaint concerning the burden of proof on safety on return could not assist the appellant. The Secretary of State and the AIT had considered the safety of return in the context of Articles 2 and 3. The AIT’s conclusion was not premised on the allocation of the burden of proof, and objective material supported it.
4. The court observed that the AIT reconsideration had been ordered on an alleged error of law which was, in substance, no more than an error of fact. Nevertheless, the reconsideration decision correctly dismissed the application because the identified grounds disclosed no error of law.

In those circumstances, the new points would not have altered the outcome, and the application was refused.

1. Court of Appeal (Civil Division) — [2008] EWCA Civ 319: refused an extension of time and permission to appeal.
2. Asylum and Immigration Tribunal — [AIT No. IA/10646/2006]: an immigration judge dismissed the appeal on 15 February 2007. Reconsideration was ordered on the limited issue of whether the section 72(4) danger-to-the-community presumption had been rebutted. Senior Immigration Judge Chalkley dismissed the reconsideration application; the decision was promulgated on 19 October 2007.