Secretary of State for the Home Department v Omar

Where permission has been granted for an appeal from the AIT, there is ordinarily a presumption that the appeal should be heard. The presumption may be displaced where the grounds pursued are materially weakened or where delay undermines the asserted public interest in pursuing the appeal. Rules developed to protect asylum claimants from lawyers’ delay do not automatically apply to delay by the Secretary of State. The court may consider the effect of delay on both the merits and the claimed need for deportation. Article 8 issues must be assessed under current law, including the proper treatment of entry clearance and obstacles to removal.

The Secretary of State sought to deport Osman Omar, a Cameroonian national, after his conviction and sentence for kidnapping. The first AIT decision allowed his appeal under paragraph 364 of HC 395 (Statement of Changes in Immigration Rules). Immigration Judge Davey later found an error of law and ordered reconsideration. On reconsideration, Immigration Judge Coleman again allowed the appeal under the Immigration Rules and Article 8 of the European Convention on Human Rights.

Senior Immigration Judge Storey granted permission to appeal on three grounds. Administrative delay meant that the notice of appeal was filed nearly a year late, and the Secretary of State pursued only one permission ground. The central issue was whether time should be extended for service of the notice.

The Court of Appeal refused an extension of time for serving the notice of appeal and dismissed the application. It did not determine the substantive merits of the proposed appeal.

1. Applicable approach. The court was prepared to assume that the presumption identified in BR (Iran) v SSHD [2007] EWCA Civ 198 applied equally to an appeal by the Secretary of State. The presumption was nevertheless capable of being displaced. The claimant-protective principle that lawyers’ delay should not ordinarily count could not be applied to departmental delay by the Secretary of State. She bore responsibility for ensuring prompt and effective immigration appeals.
2. Effect of delay. The court could consider the impact of delay on the merits and on the asserted public interest. A failure of nearly one year to pursue an appeal said to be necessary to protect the public and deter offending undermined the claimed urgency. The delay also prolonged the respondent’s and his family’s uncertainty after two favourable decisions. These considerations strongly militated against an extension.
3. Permission grounds. The entry-clearance point identified by Senior Immigration Judge Storey no longer represented the law in light of Chikwamba v SSHD [2008] UKHL 40. The proposed second ground also required qualification. The correct approach was that identified in EB (Kosovo) [2008] UKHL 41 and VW (Uganda) v SSHD [2009] EWCA Civ 5, rather than an unqualified application of the insurmountable obstacles formulation. Only one of the three grounds was pursued.
4. Earlier AIT decision. The court accepted that Immigration Judge Davey had correctly identified errors in the first AIT determination. Under paragraph 364 of HC 395 (Statement of Changes in Immigration Rules), the tribunal had to consider the Secretary of State’s view of the public interest. Risk of reoffending was only one factor and was not determinative; deterrence could also be relevant where serious offences had been committed, as explained in N (Kenya) v SSHD [2004] EWCA Civ 1094.
5. Unresolved merits issues. The court declined to resolve the challenge to Immigration Judge Coleman’s medical findings. There were strong grounds for arguing that the decision contained legal error, but that issue did not need to be determined once the extension application failed. The existing anonymity order was also discharged.

• Court of Appeal (Civil Division): In [2009] EWCA Civ 383, refused an extension of time for serving the notice of appeal and dismissed the application.
• Asylum and Immigration Tribunal: Immigration Judge Coleman allowed Mr Omar’s appeal on reconsideration under the Immigration Rules and Article 8.
• Asylum and Immigration Tribunal: Immigration Judge Davey found an error of law in the first determination and ordered reconsideration.
• Asylum and Immigration Tribunal: Immigration Judge Elliman initially allowed the appeal under paragraph 364 of HC 395 (Statement of Changes in Immigration Rules).