Khan, R (on the application of) v Secretary of State for the Home Department

Nationality Immigration and Asylum Act 2002 permits a notice under section 120 to require additional grounds within a reasonable period, although the statute does not prescribe an express time limit. The reasonableness of the period depends on the circumstances. A late response need not automatically be ignored. The Secretary of State has discretion both when deciding whether, and to what extent, to consider late material in the immigration decision, and when deciding whether to certify under section 96(2) so as to preclude an appeal. Those discretions must be exercised lawfully. A ten-day period was lawful and reasonable on the facts, and the certification decision was neither irrational nor disproportionate.

The claimant sought judicial review of the defendant’s refusal of her asylum application and certification under section 96(2) of the Nationality Immigration and Asylum Act 2002. She argued that her late statement of additional grounds should have been considered, particularly because her former legal representatives had failed to advance her separate asylum claim in good time.

Permission was granted on the question whether a section 96(2) certificate could be issued where responses to a section 120 notice were made outside the specified ten-day period. The central issues were whether section 120 permitted such a time limit and whether the Secretary of State had lawfully exercised the relevant discretions.

1. The application for judicial review was dismissed. The interim order preventing removal lapsed on determination of the claim, and the claimant was ordered to pay the defendant’s costs, subject to detailed assessment if not agreed.
2. Section 120 of the Nationality Immigration and Asylum Act 2002 enables the Secretary of State or an immigration officer to require a person to state comprehensively the reasons and grounds relied upon for remaining in the United Kingdom. Although neither section 120 nor section 96(2) expressly prescribes a time limit, the statutory purpose requires a reasonable period to be specified. Without a time limit, the one-stop procedure would be unworkable. The ten-day period in the notice was reasonable and lawful.
3. Section 96(2) concerns the availability of an appeal against an immigration decision. It does not govern or invalidate the immigration decision itself. A late response is not required to be ignored. The Secretary of State has discretion to decide whether, and to what extent, late material should be considered in making the immigration decision.
4. The Secretary of State has a further discretion whether to apply section 96(2) and certify that no appeal may be brought. In an appropriate case, compelling reasons for lateness might make it unlawful to exclude late material solely because it was late. In this case, however, the Secretary of State considered the claimant’s submissions, was entitled to conclude that the matters could have been raised earlier, and was entitled to find that there was no satisfactory reason for the omission.
5. The statement that the Home Office could not be expected to make allowance for failures by chosen representatives was not treated as a general rule. Read in context, it described the approach taken in this case and did not disclose an unlawful policy. The decision was neither irrational nor disproportionate.