TR v Asylum and Immigration Tribunal

An application to extend time for appealing an asylum decision must be decided through a structured assessment of the whole period of delay and the evidence explaining it. The strength of the proposed appeal is relevant, but cannot replace an explanation for delay. The decision-maker must also consider the consequences of refusal, including the risk of removal, the possibility of a denial of justice and whether the proposed grounds are viable rather than hopeless. Rule 10 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 requires a flexible balancing of all material circumstances. Failure to follow the authoritative guidance in BO (Nigeria), or reliance on unsupported assumptions about an unrepresented applicant’s ability to appeal, may render the decision Wednesbury unreasonable.

The claimant, a Sri Lankan Tamil who spoke no English, sought judicial review of the Asylum and Immigration Tribunal’s preliminary decision dated 17 April 2009. The AIT had refused to extend time for an appeal against the Secretary of State’s refusal of her asylum claim dated 18 July 2008.

The proposed appeal was lodged approximately thirty-six weeks late. The claimant attributed the delay principally to failings by two firms of solicitors. The AIT found that the explanation did not cover the whole period and that the evidence was inadequate. The central issue was whether the AIT had applied the correct approach under Rule 10 of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

1. Decision set aside. The AIT’s decision was Wednesbury unreasonable and was discharged. The time for lodging the appeal was extended until 17 April 2009.
2. Applicable approach. Rule 10 requires the Tribunal to decide whether, by reason of special circumstances, it would be unjust not to extend time. The starting point is an explanation, supported by evidence, covering the whole period of delay. The guidance in BO (Nigeria) is authoritative and must be applied in every such application.
3. Relevant factors. Where an adequate explanation exists, the Duty Judge must balance all material circumstances. These include the strength and viability of the proposed grounds, the consequences of refusal, the length of delay, prejudice, relevant mistakes by the respondent and any possible denial of justice. Strong grounds cannot by themselves excuse delay, but viable grounds should not be rejected merely because they appear weak. The Duty Judge is not deciding the substantive asylum appeal.
4. Errors in this case. The AIT was entitled to find that the application did not explain most of the delay and that evidence from the former representatives was absent. However, it wrongly assumed that the claimant could have lodged the appeal herself, despite her circumstances and lack of English. It failed to consider the arguable merits of the asylum claim, the consequences of refusal for the claimant and her child, and whether refusal could result in a denial of justice. It therefore failed to undertake the required structured assessment and did not faithfully follow BO (Nigeria).
5. Final orders. The AIT decision in appeal number AA/03071/2009 was discharged. The claimant’s time to appeal the Secretary of State’s decision was extended to 17 April 2009. There was no order for costs, save for a Community Legal Services assessment.

• High Court (Administrative Court): The judicial review claim was allowed. The AIT’s preliminary decision dated 17 April 2009 was discharged and the time for appealing was extended to 17 April 2009.
• Asylum and Immigration Tribunal: The AIT refused the claimant’s application to extend time for appealing against the Secretary of State’s asylum refusal dated 18 July 2008.