Kagabo v Secretary of State for the Home Department

An out-of-time notice of appeal does not institute an appeal for the purposes of the statutory prohibition on removal. The appeal remains inchoate unless and until time is extended. Accordingly, the statutory protection against removal does not arise while an application for an extension of time is awaiting determination.

The applicant is not thereby denied access to justice. An in-time appeal remains available, and removal may be restrained by judicial review where there is an arguable claim that removal would violate refugee or Convention rights. The claim was dismissed.

The claimant challenged removal directions issued after she had given notice of an out-of-time appeal against an immigration decision. She argued that the notice itself instituted an appeal under section 104(1) of the Nationality, Immigration and Asylum Act 2002, so that section 78 prohibited her removal while the extension application was pending.

The Secretary of State relied on R (Erdogan) v Secretary of State for the Home Department, submitting that an out-of-time appeal was not instituted until time had been extended. The central issue was whether the amended statutory scheme and the 2005 procedural rules required a different conclusion.

1. Claim dismissed. The issue was academic in the claimant’s individual case because the Tribunal later extended time, heard the appeal and dismissed it. It was nevertheless appropriate to decide the issue because of its general practical importance.
2. The court followed the reasoning in R (Erdogan) v Secretary of State for the Home Department [2004] EWCA Civ 1087. That decision established a distinction between an appeal instituted within time and an out-of-time application for permission or an extension of time, which is procedural and inchoate until granted.
3. The amended section 104 scheme did not remove the binding effect of that reasoning. The mandatory wording of rules 6 and 7 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 required an appeal to be instituted in accordance with the rules. An out-of-time notice therefore did not institute the appeal. The same construction was supported by YD (Turkey) v Secretary of State for the Home Department [2006] EWCA Civ 52.
4. Section 78 did not prevent removal while an extension application was awaiting decision. This interpretation did not deprive an applicant of access to justice. The applicant retained an unqualified right of appeal if exercised within time, and a removal decision could be challenged by judicial review. Where there was an arguable complaint that removal would breach refugee or Convention rights, the High Court could grant a restraining order. That mechanism satisfied the requirement for an effective remedy under article 13 of the Convention, as explained in Conka v Belgium [2002] 34 EHRR 54.
5. The court added a postscript concerning section 92. It did not decide whether a historical asylum or human rights claim created an in-country right of appeal, since that issue was not necessary to the decision.

First-instance judicial review claim. No earlier judgment forming part of the same proceedings was stated.