[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mohammadi v. Advocate General Scotland [2003] ScotCS 129 (2 May 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/129.html Cite as: [2003] ScotCS 129

[New search] [Help]

Mohammadi v. Advocate General Scotland [2003] ScotCS 129 (2 May 2003)

OUTER HOUSE, COURT OF SESSION
P 1438/02	OPINION OF LORD HAMILTON in the Petition of SAEID MOHAMMADI Petitioner; against THE ADVOCATE GENERAL FOR SCOTLAND AS REPRESENTING THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent:   ________________

 

 

Pursuer: Blair, Drummond Miller

Defender: A Wilson, H McDiarmid

2 May 2003

1. The petitioner is an Iranian national. He was born on 12 September 1966. He arrived in the United Kingdom on 8 May 2000 and claimed asylum on that day. His application was refused by the Secretary of State for the Home Department ("the respondent"). He subsequently appealed against a relative notice of refusal of leave to enter the United Kingdom and a direction for removal, contending that his removal would breach the United Kingdom's obligations under the 1951 Geneva Convention (as amended) ("the Refugee Convention"). His appeal was unsuccessful, those proceedings being concluded by a refusal on 26 March 2001 by the Immigration Appeal Tribunal of leave to appeal against the dismissal of his original appeal on 28 February 2001 by an adjudicator, Mr D S Corke. At the date of the respondent's refusal of the petitioner's application for asylum, Section 65 of the Immigration and Asylum Act 1999 ("the 1999 Act") had not yet been brought into force.
2. In May 2001 the petitioner made a claim that his removal from the United Kingdom would be in breach of various of his human rights as established by the Human Rights Act 1998. This claim was also rejected by the respondent. By virtue of Section 65 of the 1999 Act an appeal lay to an adjudicator against that rejection. The petitioner so appealed but on 10 May 2002 an adjudicator (Mrs Mozolowski) dismissed that appeal.
3. An appeal against Mrs Mozolowski's decision lay to the Immigration Appeal Tribunal ("the Tribunal") only with leave of that tribunal. Under Rule 18(2) of the Immigration and Asylum Appeals (Procedure) Rules 2000 ("the 2000 Rules") an application for leave to appeal "shall be made not later than 10 days...after the appellant has received written notice of the determination against which he wishes to appeal". "Days" are interpreted as working days (i.e. excluding Saturdays and Sundays) and an appellant is deemed to have received written notice of the determination two working days after its issue (Rule 48 and the relative Practice Direction). The last day under Rule 18(2) for the appellant to make an application for leave to appeal was accordingly 28 May 2002.
4. The appellant was represented by solicitors throughout. Although following consultation with these solicitors an application form for leave to appeal was completed by 24 May, that form was not intimated to the Tribunal until 30 May. The form as intimated included, in a paper apart, a ground of appeal, being a contention that in a particular respect the adjudicator had misdirected herself in relation to an alleged breach of the petitioner's human rights under Article 3 of the Human Rights Convention.
5. By letter dated 31 May a clerk to the Tribunal advised the petitioner's solicitors that the application for leave to appeal had not been submitted timeously and stated "Subject to any representations you make within 7 days of the receipt of this notice the case must therefore be regarded as closed". On 21 June the solicitors responded in the following terms:-

"...We know that application for Leave to Appeal was made on 30th May when the final date for seeking Leave was in fact 28th May 2002. The lateness occurred because we miscalculated the last date for seeking Leave. This occurred through no fault of our client who instructed us in good time and we should therefore be obliged if you would consider our client's application for Leave to Appeal".

By letter dated 4 July a clerk to the Tribunal wrote to the solicitors in the following terms:-

"We refer to the above matter and your letter dated 21^st June 2002.

Your application was placed before an IAT Vice President and their" (sic) "response was as follows, "This application is out of time and the reason given is inadequate"."

Rule 18(3) of the 2000 Rules provides:-

"A time set out in paragraph (2) may be extended by the Tribunal where it is satisfied that because of special circumstances, it is just for the time limit to be extended".

Although the power to extend the time limit is in terms of that Rule vested in "the Tribunal", I was advised that in accordance with practice such decisions are taken by a single member of it, such as an IAT Vice President. For the purposes of the proceedings before me parties treated the letter of 4 July as intimation of a decision made by the Tribunal under Rule 18(3), being a decision to refuse to extend the time limit. The principal issue before me was whether or not that decision fell to be reduced in these proceedings for judicial review on the ground that it was unlawful and/or unreasonable.

6. For completeness it should be added that various further communings passed between the petitioner's solicitors and officials of the Tribunal. These included what appears to have been treated as an application to the Tribunal under Rule 19(1) of the 2000 Rules to review its earlier decision; that application was also refused. That refusal is also the subject of challenge in the present proceedings and I shall make certain observations on it later in this Opinion, though it does not in my view raise essentially any new issue.
7. Mr Blair for the petitioner submitted that the Tribunal's decision intimated by the letter dated 4 July was both unlawful and unreasonable. The decision maker, he argued, had failed to make any provisional assessment of the substance of the petitioner's application for leave to appeal against the adjudicator's decision. He had also failed to have due regard to the circumstances that the application was only two days late and that that lateness was entirely attributable to the fault of the petitioner's solicitors and not to any fault on the part of the petitioner personally. In considering that failure it was important to bear in mind that the petitioner's contention was that his return to Iran would be in breach of his absolute right under Article 3 not to be subjected to torture or to inhuman or degrading treatment or punishment. Reference was made to Soering v United Kingdom (1989) 11 EHRR 439 and to McDonald's Immigration Law and Practice (5^th Edition) at paras. 8.41 - 46. Where the Convention right which it was maintained was infringed was, as here, an absolute right, the degree of scrutiny required of any application was the greater. The circumstances here were a fortiori of R v Immigration Appeal Tribunal, ex parte R. P. Mehta [1976] Imm. A. R. 38 ("Mehta No. 1"), where Lord Denning M R had observed that the Court would never let a party suffer because his or her solicitors made a mistake and were a day or two late in giving notice of appeal. The decision in R. v Immigration Appeal Tribunal, ex parte V. M. Mehta [1976] Imm. A. R. 174 ("Mehta No. 2") was to be distinguished because there the Tribunal had expressly and unequivocally stated that it had carefully considered the grounds of appeal. Mr Blair referred to a number of decisions of the Tribunal (McNulty, 22 November 1996; Mahmood, 30 April 1996; Khatib, 31 October 1997; Peters, 1 January 1999; Minta-Ampofo, 15 May 1997 and Sonoiki, undated) in each of which it had, on appeal from adjudicators' refusals to extend time limits, extended the time where the delay had been relatively short. A "rigorous scrutiny" was to be conducted of a claim that an individual's deportation to a third country would expose him to treatment prohibited by Article 3 (Jabari v Turkey (11 July 2000), an unreported decision of the Fourth Section of the European Court of Human Rights); it was particularly important that bodies such as the Tribunal, which had expertise in evaluating the information available in relation to conditions in particular countries, should address, albeit provisionally, the substance of an applicant's claim before rejecting it as out of time. The letter of 4 July was a "mechanical response" which had failed to address the substantive merits and to have due regard to the shortness of the delay and the responsibility for it. It was not now open to the respondent in the present proceedings to argue that the Court should hold that the petitioner's profferred ground of appeal was lacking in substance.
8. Miss Wilson for the respondent submitted that the petition should be dismissed. She emphasised that the petitioner's human rights appeal (which had been decided against him by Mrs Mozolowski on 10 May 2002) had proceeded not only on essentially the same factual matrix as his earlier asylum appeal (which had been decided against him by Mr Corke on 28 February 2001), but also on essentially the same issue, namely, whether the petitioner was at risk of ill treatment if returned to Iran which he had left illegally. In both cases the relevant test was whether there were substantial grounds for believing that the petitioner faced a real risk of relevant ill treatment (Secretary of State for The Home Department v Kacaj [2001] INLR 354). The essence of the petitioner's complaint in the present proceedings was that the decision maker had in reaching his decision left out of account a relevant and material consideration, namely, the potential merits of his application for leave to appeal to the Tribunal, rather than a complaint about the adequacy of the reasons given for the decision. The petitioner required to demonstrate that any failure to address the matter complained of would have made a material difference to the outcome. He had failed to do so. The fact that there was no specific reference in the letter of 4 July to the merits of the petitioner's application for leave to appeal did not mean that the decision maker had ignored those merits. The letter referred to the "application" which should be construed as embracing (1) the petitioner's application for leave to appeal, to which had been attached the proposed ground of appeal to the Tribunal, and (2) the petitioner's solicitors' letter of 21 June; it was to be inferred that the decision maker had had regard to all these materials (including the proposed ground of appeal) in reaching his decision. Although the letter of 4 July was brief, it was implicit in it that the decision maker had considered whether or not the length of delay and the explanation for it were "special circumstances" and had, having considered the "merits" of the proposed ground of appeal, decided that it was not "just" for the time limit to be extended. On that construction the decision maker had taken into account all relevant and material considerations and had come to a conclusion which could not be said to have been unreasonable in all the circumstances, including the circumstance that the petitioner had already had essentially the same claim entertained and rejected by two separate adjudicators. Reference was made to R. v. Immigration Appeal Tribunal, ex parte Ahsak [2002] EWHC 2182 (Admin), where on 29 October 2002 Rafferty J rejected a challenge to a refusal by the Tribunal to extend the time limit. It was clear in the present case that the petitioner had no compelling case to the effect that, if returned to Iran, he would suffer treatment prohibited under Article 3. There was no reason to suppose that the Iranian authorities would treat seriously someone who had simply left that country illegally. Both adjudicators had found the petitioner not to be a credible witness. Mrs Mozolowski had found that he was not at any real risk of suffering proscribed treated if returned to Iran. In relation to the reasonableness of the decision, factors to be weighed in the balance included (1) that the petitioner's solicitors were experienced in this field of practice, (2) that the notice issued with the adjudicator's decision on 10 May had spelt out that any application for leave to appeal must be lodged within twelve working days of the date of that notice, (3) that on 24 May (when apparently the petitioner had consulted with his solicitors about the possibility of an appeal) only one working day remained, (4) that there was no explanation (other apparently than that of oversight) for failure to intimate until 30 May the form which had apparently been completed on 24 May and (5) that the explanation for lateness had not been tendered until the solicitor's letter of 21 June. The appellant had a sufficient command of English to give his evidence before Mrs Mozolowski in that language.
9. In this case the application for leave to appeal to the Tribunal was made two days after the expiry of the relevant time limit. The explanation subsequently given by the petitioner's solicitors for that delay was that they had miscalculated the last date for seeking leave and that the delay had occurred through no fault of their client who had instructed them in good time. They asked that the petitioner's application for leave be considered. The response from the Tribunal was, on its face, perfunctory. It is impossible, in my view, to divine with confidence from its terms what considerations the decision maker took into account in reaching his decision. The decision itself may be taken to be the words within quotation marks which form the final clause of the letter of 4 July. The first phrase of that clause narrates the undisputed fact that the application (presumably for leave, substantively, to appeal) was out of time. The second phase states that "the reason given is inadequate". "The reason" is, on a fair construction, a reference to the explanation for lateness given in the solicitors' letter of 21 June. No indication is given as to why an explanation that the delay of two days was wholly attributable to the petitioner's solicitors was, in a class of case requiring anxious scrutiny, an "inadequate" reason to entertain the application late. Additionally and importantly, there is nothing in the letter which, in my view, warrants an inference that the decision maker addressed the particular circumstances of the petitioner's application for leave to appeal, came to a provisional view as to its potential merits (or lack of them) and took that view into account when reaching his decision. I am not persuaded that either of the references to "application" in the letter of 4 July justifies any such inference.
10. The potential significance of the "merits" to an application for extension of time was clearly explained by Megaw LJ in Mehta No. 2, where he said at pp 182-3:-

"The appellate authority - adjudicator or tribunal, having decided that the notice of appeal is out of time, has then to decide whether or not there are such special circumstances as make it right and just to allow the appeal to proceed. To make that decision the appellate authority has to look at all the material before it. That includes, or may include, material which can be said to relate to 'the merits'. Of course that material 'should be' considered, in the sense of looked at with a view to seeing whether or not it shows a factor which, in the opinion of the appellate authority, will weigh in the balance of deciding, after taking into account all relevant factors, whether the required 'special circumstances' exist. In that sense the appellate authority 'should' look at it. If it fails to look at it, it cannot possibly assess whether it may be a relevant factor. In that sense, it is not 'may', but, 'should'.

In particular, when the appellate authority has looked at the material and has seen that it relates to 'the substantive merits', it may not refuse to consider it further merely because that is the nature of the material. That would be contrary to the decision in the 1975 Mehta case. But, having looked at it, and considered it, the appellate authority is not required as a matter of law to allocate to it any weight, or any particular weight, positive or negative, in arriving at its overall conclusion on the question which it must answer: 'Are there special circumstances which make it just and right that the appeal should be allowed to proceed?'. 'The weight, if any, to be given to that factor is, and must be, a matter for the discretion of the appellate authority".

11. In Mehta No. 2 the Tribunal had expressly and, in the view of the Court of Appeal, unequivocally stated that it had carefully considered the appellant's lengthy grounds of appeal, a circumstance which the Court of Appeal regarded as critical in upholding its decision. The Court of Appeal was thus able to distinguish the circumstances of that case from those in Mehta No 1 where the Court had set aside the Tribunal's decision, Lord Denning observing, amongst other comments, - "We never let a party suffer because his solicitors make a mistake and are a day or two late in giving notice of appeal".
12. Miss Wilson argued that to demonstrate an error of law the petitioner required to show that the decision maker had failed to take into account a consideration which was both relevant and material (Wordie Property Co Limited v Secretary of State for Scotland 1984 SLT 345, per Lord President Emslie at page 348). She submitted that on examination it could be seen that the petitioner's case lacked any compelling quality; account should be taken of the fact that this was a second tier appeal (from an adjudicator to the Tribunal rather than from an immigration officer to an adjudicator) and that the appellant had additionally had an earlier unsuccessful appeal (the asylum appeal) to an adjudicator on essentially the same issue. I am not satisfied that this is, except possibly in a case where the application for leave to appeal is manifestly without substance, a satisfactory approach. In cases of this kind, where anxious scrutiny is required, the "merits" are at least potentially a relevant consideration in an application for an extension of time; their significance can only properly be determined if the appellate authority looks at them and reaches a view as to what weight, if any, should be attached to them. The Tribunal, as an expert tribunal, is better placed than any court to assess the potential merits of the substantive case. Unless it does so, there is a real risk that the requirements of anxious scrutiny will not be satisfied.
13. I am not satisfied that, on a fair construction of the relative letter, the person who decided to refuse to extend the time within which the petitioner might seek leave to appeal addressed the potential merits of his claim. Putting the matter another way, if it is necessary to do so, I am satisfied from the terms of that letter that he did not address that matter. That failure, in my view, constituted an error of law. I am not satisfied that, had consideration been given to the merits, the application for extension of time would inevitably have been refused. The petitioner is in these circumstances on that ground entitled, in my view, to have the decision reduced. I should add that I personally make no assessment of the "merits" (this being a matter which the Tribunal will hereafter require to address) other than to hold that the ground advanced does not appear to me to be manifestly without merit.
14. I also hold that the decision intimated by the letter of 4 July was unreasonable in the Wednesbury sense. I do not exclude the possibility that there may be cases where the potential merits are so lacking in substance that even lateness of two days attributable solely to the fault of representatives might against such a background render it just to refuse to extend the time. However, in the absence of material to justify the inference that the decision maker did address the merits and that he concluded on intelligible grounds that they were without any real substance, such minimal delay for such a reason, when seen against the consequences for the applicant, clearly, in my view, points to special circumstances of a kind in which no reasonable decision maker would justly deny the minimal extension required.
15. Although there are certain parallels between the circumstances in the present case and those in Ahsak, the latter is not binding on me and is, in any event, distinguishable. It is unclear from the report how late was the making of the application in that case; it may have been several weeks late and certainly seems not to have been as short as two days. Moreover, while the Tribunal had not expressly adverted to it, the Court was apparently able to conclude from its own scrutiny of the material before it that the adjudicator's decision on the merits could not be impugned. In so far as Rafferty J. appears to have been able (paragraph 20) to conclude on the material before her that the Tribunal had in fact addressed and come to a view on the merits, I can offer little comment. I am not, however, prepared to draw a like inference from the perfunctorily expressed decision in this case.
16. In these circumstances it is unnecessary to reach a conclusion on the petitioner's challenge to a later decision of the Tribunal. I should, however, briefly narrate the circumstances relevant to it. Following receipt of the letter of 4 July, the petitioner's solicitors wrote to the Tribunal on 9 July requesting reconsideration of the petitioner's application for leave to appeal. They reiterated that the lateness in making the application was caused by an error of calculation on their part. They added that their client had timeously consulted them on 24 May. They amplified their representations in a letter dated 24 July in which they stated that in their submission the merits of the petitioner's application were substantial, referring in that context to certain authority. On 30 August a clerk to the Tribunal wrote to the solicitors in the following terms:-

"The Tribunal has confirmed its decision to refuse Leave to Appeal, for the following reason(s):-

The Tribunal Chairman does not consider the reason submitted to be adequate, the determination was promulgated on the 10th May, the applicant did not consult his solicitors until the 24th May. No reason for this delay is given".

Rule 19(1) of the 2000 Rules provides:-

"Where the Tribunal has refused an application for leave to appeal, the appellant may apply to the Tribunal to review its decision on the ground that it was wrongly made as a result of an administrative or procedural error by the Tribunal".

The jurisdiction of the Tribunal under this Rule is restricted to a review of a decision on the ground that "it was wrongly made as a result of an administrative or procedural error by the Tribunal". Although the solicitors' representations made subsequent to the letter of 4 July appear to have been treated and dealt with as an application under Rule 19(1), I doubt whether that Rule was apt to embrace a review which went to the substance of the decision intimated on 4 July rather than to any procedural or administrative error giving rise to it. In any event, no essentially new point arose. While there was now information before the relative decision maker that the petitioner had consulted his solicitors on 24 May (rather than implicitly by 24 May), that factor was not, in the circumstances as a whole, material. And again, despite the express reference by the solicitors to the alleged merits of the petitioner's case, there is nothing in the letter of 30 August to the effect that the decision maker addressed that aspect. That decision, in so far as competent, was for like reasons to those applicable to the decision intimated on 4 July, in my view, flawed. However, as the earlier decision is to be reduced, the latter is of no importance.

17. The primary remedies sought by the petitioner are for declarator that the decisions quarrelled with are unlawful et separatim unreasonable and should be reduced. I shall grant such an order in respect of the decision intimated on 4 July 2002. Mr Blair did not ask for any ancillary orders. My intention is that, in consequence of the orders of declarator and reduction being made, the petitioner's application for leave to appeal to the Tribunal should now be considered by it as if it had been lodged timeously (or within a duly extended time limit). It may be that, in the light of this Opinion, such procedure can take place without any further orders being made by this Court. If further orders are required, parties are free to make an appropriate application in that regard.