Semere, R (on the application of) v Asylum and Immigration Tribunal

Time limits for seeking reconsideration of an asylum appeal must be applied consistently with the statutory scheme’s requirements of fairness, speed and efficiency. A deemed postal-service date arises only where there is evidence of when the document was sent. The presumption of service may be rebutted by reliable evidence of actual receipt. Service by fax on the final day is effective if completed before the end of that day; a four o’clock cut-off in the general civil-procedure rules does not apply where the specific reconsideration rules contain no such restriction. In deciding whether late service was reasonably practicable, the tribunal must consider the practical circumstances, including the novelty and complexity of the procedural regime and the position of legal representatives. The claimant’s application was therefore in time and, in any event, its late service was reasonably practicable to accept.

The claimant, an Eritrean asylum seeker, challenged the Asylum and Immigration Tribunal’s decision that it had no jurisdiction to reconsider the dismissal of his asylum appeal. The tribunal held that the reconsideration application had been made outside the five-day period and that an extension was not justified.

The underlying determination was sent through the Home Office after the 2005 procedural changes. The claimant’s solicitors recorded receipt on 26 July 2005 and faxed the reconsideration application on 1 August at about 6.25 pm. The issues were whether the application was in time, whether the deemed-service provisions applied, whether the evidence rebutted any deemed date, whether fax service after 4 pm was effective, and whether service within the period had been reasonably practicable.

1. Application allowed. The tribunal’s decision was quashed. The reconsideration application made on 1 August 2005 was to be reconsidered on its merits in accordance with the directions previously given by Beatson J.
2. The five-day period in section 103A of the Nationality, Immigration and Asylum Act 2002 runs from the date on which the applicant is treated as receiving notice under the procedural rules. CPR 2.8 governs calculation of that period, including the exclusion of intervening non-business days, but it does not determine the date on which postal service is deemed to occur.
3. Rule 55 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 creates a rebuttable presumption of postal service two days after sending. The presumption is engaged only where the date of sending is established. A date stamp describing a determination as promulgated did not establish the date on which the Home Office posted it. In the absence of evidence of sending, the relevant date was the date of actual receipt by the solicitors, which constituted service on the appellant.
4. The evidence that the solicitors received the determination on 26 July rebutted any presumption based on the Home Office date stamp. The tribunal erred by assuming that, if Sunday could not be the date of service, Monday must be the date. It was not entitled to create a further presumption without evidence of receipt on Monday.
5. CPR 6.7 did not impose a 4 pm cut-off on fax service under the reconsideration scheme. CPR 54.28 expressly incorporated CPR 2.8 but did not incorporate CPR 6.7. The specific rules required only effective service before the end of the last day, and the overriding objective favoured a clear and practical interpretation.
6. In assessing reasonable practicability, the tribunal had to consider the position of the represented appellant and his solicitors, the novel and complex procedural regime, the severe time limit, and the importance of fairness in asylum appeals. Given the solicitors’ belief that the application was in time and the limited delay, it was difficult to conclude that earlier service had been reasonably practicable.

The judgment does not state a conventional appellate route. It records that Beatson J had previously directed reconsideration of the asylum claim and further consideration of the timing issue. The present court granted judicial review of the AIT’s subsequent procedural decision.