R v. Secretary of State for the Home Department, Ex parte Mehmet Toprak

Queen's Bench Division: McCullough J

Appeal-political asylum-dismissal by special adjudicator-application for leave to appeal to the Tribunal-further grounds submitted in support of the application for leave after expiry of statutory time-limit for submission of application but during statutory period for Tribunal to determine the application-whether Tribunal had Jurisdiction to consider those additional grounds. Asylum and Immigration Appeals Act 1993 ss. 5(1), 5(7), 5(8), 7, 9(1): Immigration Appeals (Procedure) Rules 1984 r 16(4): Asylum Appeals (Procedure) Rules 1993 rr 13(1), 13(2), 13(4), 14(1), 16, 32(1)(a), 32(6).

The applicant was a citizen of Turkey. He was refused asylum by the Secretary of State. His appeal was dismissed by a special adjudicator. He applied for leave to appeal to the Tribunal. Certain grounds were submitted in support of that application within the statutory period laid down for an application to be made for leave to appeal. After that period had expired, but during the time allowed to the Tribunal for the determination of the application, further grounds were submitted. Those further grounds the Tribunal concluded it had no jurisdiction to consider.

Counsel argued that there had still been ample time for the Tribunal to determine the application after the additional grounds had been submitted and that it had erred in not taking them into account.

Held

1.              On an analysis of the 1993 Procedure Rules, it was clear that Parliament did not intend to permit the submission of further grounds of appeal to the Tribuunal after the expiry of the five days prescribed by rule 13(2).

2.              It followed that the Tribunal had correctly concluded it had no jurisdiction to consider the additional grounds submitted outside the five-day time-limit.

3.              Obiter further additional grounds could be submitted within the statutory five-day period.

Miss N Finch for the applicant

R Jay for the respondent

No cases are referred to in the judgment

MCCULLOUGH J: Mehmet Toprak applies for judicial review of the decision of the Immigration Appeal Tribunal on 29 June 1995 refusing him leave to appeal against the decision of a special adjudicator who had dismissed his appeal against the Secretary of State's refusal to grant him political asylum. The application raises a question about the time-limit for the service of grounds of application for leave to appeal to the Tribunal.

Mehinet Foprak is an Alevi Kurd, aged 23. He applied for political asylum on his arrival in the United Kingdom on 9 September 1993. The Secretary of State rejected his claim on 15 July 1994. He gave notice of appeal within the prescribed period and his appeal was heard by a special adjudicator on 12 May 1995. The special adjudicator disbelieved much of his evidence and dismissed his appeal.

Her determination and reasons were sent out on Friday 16 June. The applicant gave notice of application for leave to appeal to the Tribunal. This, together with a five page document headed "Grounds of Appeal", which was referred to in the application, was served on the Tribunal on Tuesday 27 June-the last day permitted by the Asylum Appeals (Procedure) Rules 1993: SI 1993 No 1661; see rules 13(2) and 32(1)(a) and (6).

The notice of application contained the words "Further Grounds to Follow". The applicant's solicitors were told that 27 June was the last day for their submission and that the time could not be extended. They nevertheless served on the Tribunal a document headed "Further Grounds" on 28 June. The Tribunal considered the application on 29 June, but refused to take account of the further grounds, being of the view that they had no power to do so.

Miss Nadine Finch, for the applicant, submits that the Tribunal did have power to receive the further grounds and should have done so. She says that, as they had been received before the Tribunal considered the application, there was nothing to prevent the Tribunal from taking them into account. She says that, even if their receipt meant that the Tribunal could not determine the application on 29 June, their decision need not have been delayed beyond 4 July, the date by which the rules required the application to by determined.

Whether or not there was power to receive the further grounds must depend on the interpretation of the 1993 Rules.

Part I of the rules is introductory. Part 11 (rules 4 to 11) deals with appeals to special adjudicators. Part III (rules 12 to 19) deals with appeals from a special adjudicator to the Tribunal. Part IV is immaterial. Part V (rules 22 to 32) is of general application.

It is instructive to look first at the principal provisions which deal with time-limits in Part II.

Rule 5(1) lays down a general time-limit of 10 days for giving notice of appeal to a special adjudicator. This time may be extended. See rule 5(7), which provides:

"A special adjudicator may extend any time-limit for giving notice of appeal provided he considers it necessary in the interests of justice."

Rule 5(8) provides:

"An extension may be made under paragraph (7) notwithstanding that the period prescribed by the time-limit has already expired."

Rule 7 provides:

"The notice of appeal may, with the leave of the special adjudicator, be varied by the appellant."

Rule 9(1) provides:

"Subject to rule 31, a special adjudicator shall determine an appeal not later than 42 days after receiving notice of the appeal."

Rule 31, the terms of which I will consider later, permits a special adjudicator to extend this period.

The principal difference between Parts II and III is that an appeal to the Tribunal, unlike an appeal to a special adjudicator, may only be brought with the leave of the Tribunal.

Rule 13(1) provides:

"An appeal shall be brought only with the leave of the Tribunal."

It follows that if leave is refused there is no appeal and that a refusal of leave is not the determination of an appeal.

Rule 13(2) provides:

"An application for leave to the Tribunal shall be made not later than 5 days after the person making it ("the appellant") has received notice of the determination against which he wishes to appeal."

Rule 13(4) provides:

"An application for leave shall be determined not later than 5 days after its receipt by the Tribunal."

Rule 14(1) provides:

"The application for leave to appeal shall be deemed to be the appellant's notice of appeal and may (as such notice of appeal) be varied by the appellant with the leave of the Tribunal."

Rule 16 provides:

"Subject to rule 31, every appeal under this Part shall be determined not later than 42 days after the date of service on the Tribunal of the appellant's notice of appeal."

Rule 31, so far as material, provides:

"(1)         Where under these Rules-

(a)           a special adjudicator or the Tribunal is required to determine an appeal;

at or within a prescribed time, the special adjudicator or (as the case may be) the Tribunal may if necessary extend the time so prescribed ... to enable it fairly to determine the appeal ...

(2)           An extension may be made notwithstanding that the time prescribed by the time-limit in any case has already expired."

There is thus a broad similarity between the provisions for hearing an appeal to a special adjudicator and those for hearing an appeal to the Tribunal. In each case there is power to give leave to vary the notice of appeal (rules 7 and 14(1)) and power to extend the period of 42 days for the determination of the appeal (rule 31).

There are, however, significant differences between the provisions governing appeals, whether to a special adjudicator or to the Tribunal, and those governing applications for leave to appeal to the Tribunal. Although leave may be given to vary a notice of appeal to an adjudicator (rule 7) and leave may be given to vary a notice of appeal to the Tribunal once it has been deemed to become such a notice, ie after leave to appeal has been given (rule 14(1)), there is no provision for giving leave to vary that notice while it is still a notice of application for leave to appeal. The time for giving notice of appeal to a special adjudicator can be extended (rule 5(7)), but there is no comparable provision for extending the time within which a notice of application for leave to appeal must be given. The stage of application for leave to appeal is governed by much stricter time-limits: five days to give notice of application (rule 13(2)) and five days for the determination of the application (rule 13(4)), and, unlike the time for determining an appeal at either level, rule 31 does not permit time to be extended for the determination of an application for leave to appeal.

I would accept-although the question does not arise for decision-that further grounds in support of a notice of application for leave to appeal to the Tribunal can be submitted within the five days prescribed by rule 13(2), but it is clear, from a consideration of the rules as a whole, that Parliament did not intend to permit the submission of further grounds after the expiry of the five days prescribed by rule 13(2).

A consideration of the Immigration Appeals (Procedure) Rules 1984: SI 1984 No 2041 reinforces this conclusion.

The 1984 Rules are referred to in a number of the provisions in Parts I and V of the 1993 Rules. In general the 1984 Rules do not apply to asylum appeals (rule 3(2) of the 1993 Rules), but rule 22 specifically applies some of the 1984 Rules to asylum appeals and rules 23 to 28 of the 1993 Rules amend the application of those provisions in the 1984 Rules which are made applicable by rule 22.

The 1984 Rules have the same five-part structure, with appeals to adjudicators being covered in Part 11 and appeals to the Tribunal in Part III. As in the 1993 Rules, an appeal to the Tribunal requires the leave of the Tribunal (rule 140)). The feature of the 1984 Rules which is significant for present purposes is rule 16(4) in Part III. This provides:

"The grounds of an appeal or application contained in particulars furnished in accordance with paragraph (1) above may be varied or amplified during the course of the appeal or application." (Emphasis added.)

This provision must have been in mind when rule 14(1) of the 1993 Rules was drafted. It is clear that the omission from rule 14(1) of the 1993 Rules of any reference to an application was deliberate.

Accordingly Miss Finch's submission cannot be accepted: the Tribunal was right: it had no power to receive the further grounds submitted after the expiry of the five days.

Miss Finch says that it follows from my decision that the application must be dismissed. Mr. Jay, for the Secretary of State, says that her concession may not be right. His point is that the Tribunal, in deciding whether or not to give leave to appeal, is obliged to consider a point of law which it thinks arguable even if it has not been adverted to in the grounds of application.

In that connection Mr. Jay invites the court to consider the following paragraph in the determination and reasons of the special adjudicator.

"I next turn to his objection to military service. I note that there was no challenge to the Secretary of State's understanding that there is no policy of sending conscripts of Kurdish ethnic origin to do their military service in that area of Turkey currently under a state of emergency. I do not believe that the appellant's objection to military service is based on a genuine moral conviction. Furthermore no evidence was put before me that the appellant would suffer disproportionately severe punishment for failing to do his military service."

I accept Mr. Jay's submission that the paragraph reveals no error of approach. The essence of the special adjudicator's reasoning in this paragraph, as elsewhere, was that she did not believe the applicant. As I have said Miss Finch does not suggest the contrary.

The application is dimissed.

Application dismissed

Solicitors: Jane Coker & Partners, London N17; Treasury Solictor