CO/4860/2004 
Neutral Citation Number: [2004] EWHC 3161 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Wednesday, 15th December 2004
 
B E F O R E:

MR JUSTICE COLLINS
 
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THE QUEEN ON THE APPLICATION OF THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
(CLAIMANT)

-v- 

THE IMMIGRATION APPEAL TRIBUNAL
(DEFENDANT) 
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Computer-Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
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MISS J ANDERSON (instructed by the Treasury Solicitor) appeared on behalf of the CLAIMANT
The DEFENDANT did not appear and was not represented
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J U D G M E N T 

1.	MR JUSTICE COLLINS:  This is a claim for judicial review by the Secretary of State of a decision of the Immigration Appeal Tribunal.  That decision was notified on 7th July 2004.  The issue is whether the Tribunal has jurisdiction to consider an appeal against a decision of an adjudicator to refuse to extend time for the consideration of an appeal against the decision of the Secretary of State refusing a claim by an individual, who normally in these cases, and indeed in the case which is before me, is an asylum seeker.  The question depends upon the true construction of the statutory provisions, including the Procedure Rules, which are applicable to appeals to the Immigration Appellate Authority.  
2.	The relevant statutory provisions are contained in the Nationality, Immigration and Asylum Act 2002.  Section 82 provides for the general right of appeal on asylum and human rights grounds against a decision of the Secretary of State.  Section 101 deals with appeals to the Tribunal, and provides by subsection (1): 
"A party to an appeal to an adjudicator under section 82 or 83 may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator's determination on a point of law."
3.	Section 102(1) provides so far as material: 
"On an appeal under section 101 the Immigration Appeal Tribunal may -- 
"(a) affirm the adjudicator's decision; 
"(b) make any decision which the adjudicator could have made ..."
4.	It is not entirely clear why Parliament has seen fit to use the word "determination" in section 101(1) and "decision" in section 102(1).  It suggests that, in the mind of the legislature, the two words have the same meaning.  
5.	Where the Immigration Appeal Tribunal determines an appeal under section 101, a party to the appeal may bring a further appeal on a point of law to the Court of Appeal.  But that appeal can only be brought with the permission of the Tribunal or of the Court of Appeal.
6.	Finally, because it is material when one comes to consider the main authority upon which Miss Anderson has relied, section 104 provides for the circumstances in which appeals should be regarded as pending.  Section 104(1) provides:
"An appeal under section 82(1) is pending during the period -- 
"(a) beginning when it is instituted, and
"(b) ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99).
"(2) An appeal under section 82(1) is not finally determined for the purposes of subsection (1)(b) while a further appeal or an application under section 101(2) -- 
"(a) has been instituted and is not yet finally determined, withdrawn or abandoned, or
"(b) may be brought (ignoring the possibility of an appeal out of time with permission)."
7.	If there is no appeal, then the decision of the Secretary of State will take effect once the time for appealing has passed.
8.	I must now go to the Rules to see the procedure whereby appeals can be brought.  The Rules in question are The Immigration and Asylum Appeals (Procedure) Rules 2003 No. 652 (L16).  Rule 2 deals with interpretation, and "appellant" is defined as follows:
"'appellant' in relation to an appeal to an adjudicator has the meaning given by rule 5(2), and in relation to an appeal to the Tribunal has the meaning given by rule 14(2)."
9.	One therefore goes to 5(2), and one finds that this is in Part 2, which deals with appeals to an adjudicator, and provides:
"In this Part, and in Part 6 insofar as it applies to appeals to an adjudicator -- 
"(a) 'appellant' means a person appealing to an adjudicator; 
"(b) 'respondent' means the decision maker specified in the notice of decision against which the appellant is appealing."
10.	Then Rule 6 provides:
"(1) An appeal to an adjudicator against a relevant decision must be instituted by giving notice of appeal in accordance with these Rules."
11.	The procedure is that the notice of appeal is to be served upon the respondent, that is to say the Secretary of State, and it is for the respondent to decide when the notice is forwarded to the immigration appellate authority.  When he does forward it, he has to include various documents which are relevant to the decision which has been made.
12.	Rule 7 deals with time limits.  It provides by 7(1):
"A notice of appeal by a person who is in the United Kingdom must be given -- 
"(a) if the person is in detention under the Immigration Acts when he is served with notice of the decision against which he is appealing, not later than 5 days after he is served with that notice; and
"(b) in any other case, not later than 10 days after he is served with notice of the decision."
13.	That is if he is in the United Kingdom.  I do not need to consider the time limits in relation to those outside the United Kingdom.
14.	Rule 8 deals with the form and contents of the notice of appeal and requires it to be in an appropriate prescribed form and contain various details.  Rule 9 deals with the duty of the Secretary of State to serve notices of appeal together with the documents, which I have already referred to, upon the IAA.  Rule 10 deals with a late notice of appeal.  10(1) provides:
"Where a notice of appeal is given outside the applicable time limit in rule 7, the appellant must -- 
"(a) state in the notice of appeal his reasons for failing to give the notice within that period; and
"(b) attach to the notice of appeal any written evidence upon which he relies in support of those reasons.
"(2) Where the respondent [that is the Secretary of State] receives a notice of appeal outside the applicable time limit, he may treat the notice as if it had been given in time, if satisfied that by reason of special circumstances it would be unjust not to do so.
"(3) Where the respondent receives a notice of appeal which he contends has been given outside the applicable time limit, and does not treat the notice as if it had been given in time, he must -- 
"(a) file with the appellate authority ..."
15.	Then various documents, including the notice, are listed, and: 
"(b) at the same time, serve upon the appellant a notice stating that -- 
"(i) he is treating the notice of appeal as being given out of time; and
"(ii) he is sending the notice of appeal to the appellate authority for an adjudicator to decide whether to extend the time for appealing."
16.	Paragraphs (4) and (5) enable the appellant to file written evidence in support of his contention that the notice of appeal was given in time.  Then (6) provides:
"If the appellant files evidence under paragraph (4), an adjudicator must decide whether the notice of appeal was given in time.  
"(7) Where the notice of appeal was given out of time, the adjudicator may extend the time for appealing if satisfied that by reason of special circumstances it would be unjust not to do so. 
"(8) The adjudicator must decide the issues in paragraphs (6) and (7) -- 
"(a) without a hearing; and
"(b) on the basis of the documents filed by the respondent and any written evidence filed by the appellant."
17.	 (9) requires that notice of the adjudicator's decision be served upon the parties.
18.	It is clear from the Rules, and in particular Rule 10, that the draftsman regarded a notice of appeal out of time as a notice of appeal.  It was not treated as something separate, namely an application for leave to appeal out of time.  That is apparent from the language used, namely the references in Rule 10(1) to a "notice of appeal given outside the applicable time limit", and to "the appellant", and in Rule 10(9), where there is a provision that the notice of the adjudicator's decision must be served on the parties.  That can only mean in the context the parties to the appeal to the adjudicator.
19.	It is to be noted that, in relation to appeals to the Tribunal, different language is used.  Rule 14(2) provides:
"In this Part, and in Part 6 insofar as it applies to appeals to the Tribunal -- 
"(a) 'appellant' means a party appealing to the Tribunal against an adjudicator's determination, and includes a party applying to the Tribunal for permission to appeal ..."
20.	Then 15, which deals with applying for permission, provides:
"(1) An appeal from the determination of an adjudicator may only be made with the permission of the Tribunal upon an application made in accordance with these Rules.
"(2) Subject to paragraph (3), an application for permission to appeal must be made by filing an application notice with the appellate authority."
21.	It is that difference, the draftsman of the Rules having regarded an application for permission to appeal to the Tribunal as not being itself a notice of appeal, that has led to the need to define "appellant" in 14(2) as including a party applying to the Tribunal for permission to appeal.  The same need is not apparent from Part 2, relating to appeals to an adjudicator, because the draftsman has clearly regarded a notice of appeal to the adjudicator, even if out of time, as what it purports to be, namely a notice of appeal.  Hence, there was no need for an extended definition of "appellant" to be given in Part 2.
22.	Miss Anderson submits that the language used in the Rules cannot determine the true construction of the statute.  That is no doubt correct.  On the other hand, if the statutory language is open to an interpretation which accords with that clearly regarded as right by the draftsman of the Rules, then that is a good reason for the court to apply that construction.
23.	The Tribunal under the old Rules, that is to say the 2000 Procedure Rules that followed the 1999 Act, was faced with slightly different language.  This led to a decision, B (Zimbabwe) [2004] UK IAT 00076, which was in fact notified very shortly before the hearing of the case with which this claim is concerned. 
24.	The circumstances in B (Zimbabwe) involved an attempt by the appellant, as she is described by the Tribunal, to appeal from a decision of an adjudicator deciding that she had no valid appeal against the decision of the Secretary of State refusing her leave to enter.  She failed to appeal within the time limit, which expired in her case on 21st March 2002.  She apparently served a notice of appeal, in accordance with the Rules then applying, on 10th April 2002.  Section 58(5) of the 1999 Act provided:
"For the purposes of the Immigration Acts, an appeal under this part is to be treated as pending during the period beginning when notice of appeal is given and ending when the appeal is finally determined, withdrawn or abandoned."
25.	It did not, as will be noted, include the words in parenthesis which now appear in section 104(2)(b) of the 2002 Act:
"...(ignoring the possibility of an appeal out of time with permission)."
26.	The Tribunal set out the relevant Rules, which included a definition of "determination" as meaning:
"... the decision of the Appellate Authority to allow or dismiss an appeal and the reasons for that decision."
27.	In paragraph 10 of the decision, the Tribunal, which consisted of legally qualified members headed by the Deputy President, said this:
"We begin with section 58.  As Mr Pipe pointed out, whatever else the document issued by the Appellant was, it does appear to have been a Notice of Appeal.  He asks us to note that under section 58(5), an appeal is to be treated as pending during the period beginning when notice of appeal is given.  If the notice in the present case is a notice within that provision, then he has, he says, a pending appeal before the Appellate Authorities.  We are satisfied that section 58(5) is to be read as referring only to a notice of appeal which either begins as valid and in time, or is later accepted by the Respondent as in time, or is treated by the Adjudicator either as in time, or as one in which there are special reasons for allowing the appeal to proceed.  In other words, we do not read section 58(5) as applying to a Notice of Appeal which is not a valid, in time notice.  The reason for that is as follows.  While an appeal is pending there are restrictions on the right of the Secretary of State to remove an Appellant from the United Kingdom.  As is well known, provisions of the Immigration Acts are sometimes subject to abuse.  Without wishing to make any such accusation in the present case, it is clear that to allow an unsuccessful Applicant to inhibit his removal automatically by putting in an invalid Notice of Appeal, long after the time fixed for putting in such a notice, would enable, and possibly indeed encourage abuse.  Section 58(5) does not therefore in our judgment assist the Appellant in this case."
28.	With the greatest respect to the Tribunal, I am not persuaded by that argument.  As a matter of practicality, if there is intended abuse, delay can be achieved as much by a claim for judicial review, which of course would be the alternative, as by putting in a notice of appeal.  Furthermore, if a notice of appeal out of time were lodged, it would be difficult for the Secretary of State, notwithstanding its existence, to remove, and it would be likely that a claim for judicial review to prevent such removal would be made.  That claim would undoubtedly fail if there was an abuse and it would relatively speedily be disposed of, but the same would apply to an abusive notice of appeal filed out of time.
29.	The fact is that, because of the system whereby notices have to be served upon the Secretary of State and it is up to the Secretary of State to decide when he forwards the notice to the immigration appellate authority, there can be, and sadly quite often is, considerable delay while the Home Office processes the relevant paper work.  In the meantime, the appellant in the particular case may find himself removed to another part of the country, or may lose touch with his advisers, and the Home Office, equally, may lose touch with him.  The obligation to keep in touch with the appellate authority under the Rules is impractical until the matter is put before the immigration appellate authority, because they will have no record of the case until it is forwarded to them.  
30.	Sitting in this jurisdiction I am aware of a number of cases sitting in this jurisdiction where it is only when support is brought to an end, or removal is decided upon, that the individual appreciates that his application for asylum has been refused.  In those circumstances, judicial review is usually launched.  At that stage, there clearly will be an alternative remedy, namely to lodge a notice of appeal to an adjudicator, notwithstanding that it is out of time, and include with it the reasons why it was out of time.  
31.	In those circumstances, if the reasons are good, then one would hope that the Secretary of State, or if not the Secretary of State, the adjudicator, would appreciate that that was the position and permit the appeal to go ahead.  If it was abusive, if it was an attempt simply to delay, that again would, one hopes, be spotted at an early stage.  The Home Office would spot it and would put the matter straight to the IAA and it could be dealt with, and should be dealt with, speedily.  There is no reason at all why some system should not be set up which ensures that cases that are lodged out of time can be dealt with speedily.  In any event, to construe the statutory provisions in the light of perceived fears of abuse is, in my view, not a correct approach to statutory construction.
32.	Be that as it may, at that time, it is to be noted that the definition of "determination" did make it somewhat more difficult to treat the decision of an adjudicator refusing an extension of time as a determination.  I should say, incidentally, that the same, one would have anticipated, would have applied to a claim which, albeit it was said to be out of time, was actually in time, but the adjudicator's decision was that it was out of time.  
33.	I come now to the decision of the Court of Appeal in Erdogan [2004] EWCA Civ 1087, upon which Miss Anderson particularly relies.  The decision itself was given on 23rd July 2004.  The only reasoned judgment was that of Newman J.  The case itself was concerned with removal of support and the question was whether there was a pending appeal by reason of a notice that was lodged out of time.  
34.	The problem in that case was that it was taking a very long time for the Tribunal to consider the application which had been made to it.  Apparently, Miss Anderson informs me, as she appeared in that case on behalf of the Secretary of State, it was said that it was taking up to nine months for the Tribunal to determine these matters.  Certainly, if the Tribunal grants permission and there has to be a substantive hearing, that can be considerably delayed at the moment, although it is right to say that the Tribunal is having something of blitz on the backlog.  But there is no substantial delay, unless something has gone badly wrong in an individual case, between the lodging of an application for permission to appeal and the determination of that application.  That is dealt with normally within, at the most, five or six weeks, and one would expect any abusive or unmeritorious case to fail at the permission stage, bearing in mind that an appeal can only proceed before the Tribunal on a point of law.  That means that permission will be granted if, but only if, there has been some procedural impropriety, whether the fault was with the Home Office or with the IAA itself, or the decision of the adjudicator was an irrational decision.  There will be few cases where that applies.  
35.	As it happens, the three cases which the Tribunal heard together, and which have given rise to this claim, were all cases where there were clear and obvious merits in the claims being made by the individual appellants and, in those circumstances, the claimants before me, recognising that the appellant had merit, have agreed that the appellant's appeal should proceed.  But this claim is to clarify the jurisdictional position.  
36.	In Erdogan, Newman J set out the main reasons for his decision in paragraphs 14 and 15.  What he said was this: 
"14.  In my judgment, the judge fell into error in failing to draw a distinction between an application for permission to appeal and an application for permission to appeal out of time.  The possibility of such an application being made is recognised in section 104(2)(b) and is referred to in section 104(2)(b):
"'... the possibility of an appeal out of time with permission.'
"The expression is used not only in section 104(2)(b), it also appears in section 82(3)(a) in connection with an appeal against a variation or revocation of leave to enter or remain and indefinite leave to enter or remain.  It also appears in section 87(3)(a) in connection with an appeal against a direction made by an adjudicator.  The consistent statutory scheme is to provide that "any possibility of an appeal out of time with permission" does not have the same impact as an appeal made or capable of being made within the time limit for appealing. 
"15.  As a matter of general approach to time limits in connection with an appeal, it seems to me that, since an application for permission to appeal within a statutory time limit exists as a statutory right, it has a character which an application made out of time does not.  The existence of a discretionary power to extend time upon application being made gives rise to a procedural right which is inchoate in character.  However, in this instance, the result is, in my judgment, driven by the terms of section 104.  Further, section 104(2)(b) includes within the meaning of a pending appeal the situation where an appeal has not been instituted, but the period when an appeal "may be brought" is still running.  It is not simply the institution of an appeal which creates a pending appeal; it is the currency of the time limit.  The words in brackets, "ignoring the possibility of an appeal out of time with permission", point to such an application being different in kind.  The rules, in my judgment, make the position clear.  Rule 16(2) in terms provides that if permission to appeal out of time is granted, then the appeal will be in accordance with paragraph 1 of rule 16.  Once that occurs, there will be a pending appeal within section 104."
37.	It is to be noted that Erdogan's case was concerned with an application to the Tribunal, and Newman J was considering the Rules relating to an appeal to a Tribunal.  As I have already pointed out, the language of the Rules in that context is very different from the language in relation to appeals to an adjudicator.  In Erdogan, as I have just cited, Newman J uses those Rules as a pointer in the direction of the correctness of the decision that there was a distinction to be drawn between an application for leave to appeal and the appeal itself.  So, in connection with appeals to the Tribunal, there is.  But the position is not the same in relation to appeals to an adjudicator.
38.	The question, therefore, is whether the general approach that Newman J refers to at the outset of paragraph 15 means that the same approach must be applied to appeals to an adjudicator as is appropriate for appeals to the Tribunal.  It is incidentally to be noted that it is apparently conceded by the claimants, certainly Miss Anderson accepts, that, where it is contended that the appeal was in time but the adjudicator decides that it is out of time, the Tribunal would have jurisdiction.  The justification for that is, as I understand it, that in a case where it is said that the appeal was in time, or where there is a dispute about it, the appellant can be properly regarded as an appellant because that is his contention.  Whereas, if he knows that the appeal is out of time, and he is relying upon the exercise of discretion, that is not to be regarded as an appeal, but merely as an application for permission to appeal out of time.  It is a distinction which, I confess, that I find somewhat difficult to apply.  It leads to the absurdity that if there is a contention that the appeal was in time, or alternatively that if it was not in time discretion should be exercised, the refusal of both claims would lead to the one having to go to the Tribunal and the other having to go to judicial review.  That cannot be a sensible result on any view.
39.	One thus comes back to the bedrock of Miss Anderson's claim, which is that the wording of section 101 is inappropriate where a notice of appeal is lodged out of time because, she submits, the person who is seeking discretion to enable the appeal to go ahead cannot be regarded as a party to an appeal.  The Rules have no difficulty in regarding such a person as a party to an appeal and, on the face of it, I see no particular reason why the statute should be any different.
40.	I should finally come to the decision of the Tribunal in question.  The Tribunal notes the absence of any definition of "determination" and the use of the words "determination" and "decision" in sections 101 and 102, apparently being interchangeable.  It leads to the conclusion that the use of the word "determination" is not a term of art, it merely means what the adjudicator decides.
41.	In paragraph 19, the Tribunal referred to B (Zimbabwe) and made the point that the Tribunal in that case had made clear that it was reaching the view only on the 1999 Act and the 2000 Rules and not on the later provisions with which the Tribunal was concerned in the cases before it.  Its conclusions are set out in paragraphs 25 to 30.  I do not propose to read all of them, but what the Tribunal drew attention to was the dropping of the specific definition of "determination".  What it stated in paragraph 27 was as follows:
"The Tribunal, under the 2002 Act and the 2003 Rules has power to hear appeals from the determinations of Adjudicators.  There is now no definition of 'determination' which limits the application of that power to those decisions which allowed or dismissed an appeal.  
"28.  The 2002 Act uses the word 'determination' in section 101 and 'decision' in section 102 to refer to the same decision or determination.  It cannot have been intended to give the word 'determination' a very specific meaning, limiting rights of appeal, if Parliament then uses the words indifferently and seemingly synonymously.  We do not accept that the limitations of the definition in the 2000 Rules should be carried over into the new Rules when Parliament has not so provided.  It is that very specific definition which led to the decision in B (Zimbabwe)."
42.	The Tribunal in paragraph 30 concluded:
"It was suggested by Mr Hutton that there was no policy reason for the change in the Rules; Parliament, if anything, would have been trying to tighten them up and would scarcely have allowed greater rights of appeal, as would happen if the Tribunal had a wider jurisdiction than before; it was an oversight that the definitions had been dropped.  He had to accept, however, that the decisions at issue would be challengeable by the more prolonged process of judicial review if he were right.  It seems to us that the Tribunal was right in B (Zimbabwe) to point to the policy of the Act as showing what Parliament envisaged.  But the change in wording may well be the consequence of its realisation that the removal of rights of appeal would simply lead and did in fact lead to Judicial Review of the decision, rather than to an absence of challenge to the decision.  The re-instatement of the rights of appeal reflects the need for the greater speed which a specialist appellate Tribunal can bring.  If this change had simply been an accident, as he suggested, then it has been a sound step towards the achievement of the overriding objective as set out in the Rules nonetheless."
43.	The Home Office is concerned that the speed is not there in the Tribunal.  But as I pointed out to Miss Anderson in the course of argument, the speed in determining permission is there and abusive cases will fall by the wayside at that stage.  There is no need for the cumbersome and more expensive judicial review.
44.	It seems to me that the expression "parties to an appeal" is perfectly capable of extending to those who lodge a notice of appeal against an appealable decision in accordance with the Rules.  This is not a question of the Rules determining the meaning of the Act, but the Rules indicating what is to be regarded in the context as a notice of appeal. Erdogan was concerned with a different situation at a different stage, and the Rules did not at that stage provide for an appeal to exist in circumstances where there was an application to the Tribunal out of time.  The situation is different, as I have indicated, in relation to appeals to an adjudicator.
45.	In those circumstances, it seems to me that the decision of the Tribunal was correct and therefore this application must fail.  There is no question of costs, I would imagine? 
46.	MISS ANDERSON:  No, my Lord.
47.	MR JUSTICE COLLINS:  In fact, it is really only the next four months, is it not? 
48.	MISS ANDERSON:  Yes, well it is somewhat to be seen, my Lord, quite what is going to emerge.
49.	MR JUSTICE COLLINS:  Well, they still have not finalised the Procedure Rules in relation to the new Act, so you can take this on board, assuming it comes into force.  Thank you very much.