NA (Excluded decision; identifying judge) Afghanistan – Case Note

NA (Excluded decision; identifying judge) Afghanistan [2010] UKUT 444 (IAC)

Background

NA’s claim for protection in the UK was refused by the Secretary of State.  NA sought to appeal but lodged the notice of appeal four days after the deadline. The notice was accompanied by a supporting statement written by a law centre volunteer.

The statement explained that the appellant was required to attend her offices on the last day for lodging the appeal but that no volunteer was available that day so the appellant was asked to attend “at the next possible opportunity.” It also emphasised the risk facing NA if returned. Unsurprisingly, this explanation was described by the Upper Tribunal as: ‘…cursory and, at times, wholly unenlightening when attempting to assess the strength of his claim.  In essence, it is repeated on three occasions that he has “told the truth” and is in “grave danger” or faces a “real risk of serious harm” if returned.  His country of origin is not mentioned.’

A Deputy Judge considered whether to extend time as a preliminary issue. The judge applied the tribunal decision BO and others (Extension of time for appealing) Nigeria [2006] UKAIT 00035 and refused to do so on the basis that no adequate explanation had been provided for the delay and no special circumstances could be identified to show that decision to be unjust.  NA appealed to the Upper Tribunal.

The Upper Tribunal held the decision not to extend time was properly open to the Deputy Judge. However, it identified two issues of difficulty that did not turn upon the particular circumstances of the appellant.   One concerned an important point of ‘open justice’.  The other concerned the jurisdictional issue of whether there is a valid appeal before the Upper Tribunal at all.

Open Justice

The Upper tribunal noted that the preliminary decision of the Deputy Judge included neither his or her name at the beginning, nor at the end of the decision – which remained blank and unsigned. 

Further, it was wholly unclear from the document who made the decision and whether, in fact, it is the work of one of the Duty Judges of the First-tier Tribunal. Whilst noting such an omission could be corrected by the slip rule, it concluded ‘…that time had now passed.’  Relying on R v Felixstowe Justices, ex parte Leigh and another [1987] 1 All ER 551 the tribunal explained that, in its judgment, if the identity of a judge is unknown, that is a fatal flaw rendering the decision vitiated.

‘…a litigant was entitled to have his case heard and dealt with by a judge who was not disqualified by actual or apparent bias from adjudicating upon his case.  Without knowledge of the judge’s name there would be no effective way of the right to object being “fully and properly exercised.  Watkins LJ observed that from time to time judges were the subject of criticism or worse but this was no justification for anonymity.  The Court concluded that it was a principle of open justice that “those who do justice be known.   A bona fide inquirer was entitled to know the name of a magistrate sitting on a case or who had done so.’

Right of Appeal to the Upper Tier

The second issue was said to be more fundamental.  Under the Tribunal, Courts and Enforcement Act [2007] s.11 there is of appeal against any decision of the First Tier Tribunal on a point of law other than what is defined as an ‘excluded decision’ pursuant to s.11(5), and Article 3(m) of the Appeals (Excluded Decisions) Order 2009 which adds ‘any procedural, ancillary or preliminary decision made in relation to an appeal…’ to the category of excluded decisions.

Accordingly, the tribunal held that because the decision whether to admit an out of time appeal is a ‘preliminary decision’ (First Tier Procedure Rules 10(6)), such decisions could not be challenged on appeal to the Upper Tier Tribunal.  In NA’s case there was ‘…no statutory basis upon which to grant permission to appeal to the Upper Tribunal…’

In effect there was no decision under challenge before the Upper Tribunal, although in light of its finding about the lack of open justice, it very fairly invited the First Tier Tribunal to consider again whether to extend time.

Whilst the open justice point is very much worth bearing in mind, the jurisdictional issue will be more relevant to everyday practice since the case for an extension can only be put when lodging the appeal out of time. Those advising must always explain fully the circumstances that led to the notice of appeal being filed late, add any relevant additional evidence in support, and set out sufficiently cogent reasons why special circumstances would render unjust any decision not to extend time.

About jcwi

Joint Council for the Welfare of Immigrants is a key campaigning voice in the field of immigration, asylum and nationality law and policy. It is completely independent from government funding, remaining entirely free from government influence. View all posts by jcwi

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