| IMMIGRATION — Appeal from Asylum and Immigration Tribunal — AIT granting permission to appeal — Subsequent application for extension of time for filing of appellant’s notice — Guidance
BR (Iran) v Secretary of State for the Home Department;
MD (Iran) v Same [2007] EWCA Civ 198
CA: Buxton, Rix and Moses LJJ: 13 March 2007
Guidance concerning applications for an extension of time for the filing of an appellant’s notice where permission to appeal against the decision of an immigration judge had already been granted by the Asylum and Immigration Tribunal.
The Court of Appeal gave such guidance when granting the unrelated applications of BR and MD for extensions of time in which to file appellant’s notices by which they sought to appeal against decisions of immigration judges dismissing their claims for asylum.
BUXTON LJ said that in both cases the applicant had applied for an extension of time for the filing of an appellant’s notice where permission to appeal against the decision of an immigration judge had already been granted by the Asylum and Immigration Tribunal (“AIT”). Guidance as to extensions of time was given by the Court of Appeal in YD (Turkey) v Secretary of State for the Home Department [2006] 1 WLR 1646, an authority to which his Lordship paid respectful attention. But the present cases were different from any that had previously been before the Court of Appeal. First, permission to appeal had already been given by a senior immigration judge. Second, failure to pursue that permission, leading to the need to apply for an extension of time, was the (serious) fault of the applicants’ lawyers, and not of the applicants themselves. In the present, limited, category of case his Lordship would adopt the following principles. (i) There should be a presumption that where the AIT had granted permission to appeal to the Court of Appeal the appeal ought to be heard. (ii) If a procedural fault caused the Court of Appeal to have to consider whether the appeal should proceed, the presumption might be displaced if it could be shown that the decision of the single immigration judge was plainly wrong, in the sense that it was clear that failure to pursue the appeal would not lead to the United Kingdom being in breach of its international obligations. The court, on a preliminary application such as the present, would have to make that assessment without actually hearing the appeal, but the inquiry was likely to come close to being in substance an appeal rather than just an application. (iii) Length of delay, when caused by legal representatives, should not be relevant. (iv) Where delay had been caused by the applicant the court was likely to look carefully at the light that that shed on the credibility of the assertion that the applicant had a good claim for international protection. At the same time, the court would remind itself that if, after that scrutiny, such a claim was established, then the claimant was indeed entitled to international protection despite the domestic court’s disapproval of his conduct or his way of promoting his case. That necessarily followed from Danian v Secretary of State for the Home Department [2000] Imm AR 96.
RIX and MOSES LJJ agreed.
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