R v. Immigration Appeal Tribunal, Ex parte Nalongo

R v IMMIGRATION APPEAL TRIBUNAL ex parte NALONGO

Queen's Bench Division

[1994] Imm AR 536

Hearing Date: 29 June 1994

29 June 1994

Index Terms:

Adjudicator -- appeal -- representative sought recommendation -- no recommendation made -- adjudicator gave no indication she had considered whether to make a recommendation -- whether adjudicator obliged specifically to state whether she had considered making a recommendation -- whether failure by adjudicator to make a recommendation appealable. Immigration Act 1971 s 19.

Held:

In the course of an appeal before an adjudicator, the appellant's representative, aware that the appeal could not succeed under the rules, sought a recommendation from the adjudicator. That request was recorded by the adjudicator but in her determination dismissing the appeal she made no recommendation nor did she say that she had considered the request and had decided a recommendation was inappropriate. In seeking leave to move for judicial review it was suggested that the adjudicator erred in not recording that she had considered but had decided not to make, a recommendation. Held 1. There was no statutory duty on an adjudicator to consider making a recommendation, and a failure to do so was not appealable to the Tribunal. 2. There was no obligation on an adjudicator to record that she had considered making a recommendation or why she had decided not to do so.

Counsel:

J Gillespie for the applicant; N Garnham for the respondent PANEL: Macpherson J

Judgment One:

MACPHERSON J: This is an unfortunate case, as are so many immigration cases which come before this court. The applicant is Paulina Nalongo. I believe she is around 60 years of age. She has two daughters, one of whom is sadly now dead. There are two children of the deceased daughter living in this country. There is, fortunately, another daughter who has either settled in the United Kingdom or has leave to remain, at least for a number of years in the future while these two children grow up. I am hoping, although this is irrelevant to the decision, that they may be looked after still in this country, otherwise they may have to return whence their grandmother came. The applicant is a Ugandan national who was given leave to remain in the United Kingdom for six months, as a visitor, on 9 April 1990. Her leave to remain was subsequently extended until 9 October 1991 on an exceptional basis to enable the applicant to care for her daughter who was seriously ill. On 18 September 1991 the applicant applied for indefinite leave to remain. On 10 March 1992, through her solicitors, she asked for her application to be dealt with outside the immigration rules. The application was refused on 14 May 1992. An appeal was lodged and the matter came before Mrs HC Rose, an adjudicator, on 29 April 1993. I have before me the written decision of the adjudicator. There can be, and is, no complaint about her hearing of the case, or her decision as a matter of immigration law in connection with the appeal against the refusal of the application for indefinite leave. There is nothing that can be raised in this court in that regard. However, as is customary and quite usual in cases of this kind, the representative of the applicant submitted that the adjudicator had power to look at the discretion and: "On the evidence he asked that I should make a recommendation." That is a reference to a recommendation which can be and fairly often is made by adjudicators that the matter should be looked at by the Secretary of State outside the immigration rules. If an adjudicator makes a positive recommendation, the history of recommendations in the context of immigration law shows that the Secretary of State ordinarily will heed such a recommendation and very often follows the recommendation made. It should be stressed, however, there is no duty upon an adjudicator to consider an application for recommendation as a matter of law. Recommendations have no statutory basis at all and making them is no part of the adjudicator's statutory function. Therefore, it seems palpable that failure to make or consider a recommendation cannot be appealable. It may be that subliminally the representatives of this applicant knew that was so because when they sought to appeal this matter to the Immigration Appeal Tribunal this matter was not raised at all. Furthermore, the question of a recommendation did not come before the Tribunal because the appeal was considered on paper and, rightly in my judgment, rejected as showing no valid grounds of appeal which could be considered by the Tribunal. In one sense that disposed of the case because the form 86A makes it plain that that decision, in respect of which relief is sought, is the determination of the Immigration Appeal Tribunal refusing the applicant leave to appeal from the decision of the adjudicator. Mr Gillespie is ingenious and persuasive in his argument, but it is impossible in my judgment to construct some sort of "appeal on the face of the record" as he tried to do in the latter part of his submission to me. The heart of the submission is simpler than that. Mr Gillespie says that the adjudicator indicated that she had been asked to make a recommendation and then let the matter die. There is nothing at the end of the adjudication, or after that quotation to which I have referred, indicating that she did cerebrate about the recommendation and decide not to make one. In my judgment it is going much too far to require an adjudicator to "show her working" in that regard in respect of the recommendation. The matter was put positively before her by the representative. It was noted as being put before her and she made no recommendation. Sadly for the applicant, in my judgment that must be, and is, an end of the matter. There simply was no recommendation made in this case and it would be wrong to assume that it simply slipped the mind of the adjudicator who gave a considered and written decision. Furthermore, nobody thought that it might be a good idea simply to write a letter asking to confirm whether the adjudicator had or had not considered the matter. I believe that it would be most likely if that letter had been written she would have said "Of course I made no recommendation; my decision speaks for itself." There is nothing at all in this application and, subject to anything which the Home Secretary may decide in the future, that is an end of the case. Mr Gillespie applied to Judge J to give leave, and that is much to his credit, but I believe the decision of Pill J made on 13 January 1994 was, as it turns out, wholly correct. The matter has been properly and fully ventilated and I am much indebted to Mr Gillespie for his careful argument. This application must be refused.

DISPOSITION:

Application refused

SOLICITORS:

Immunity Legal Centre, London, NW1; Treasury Solicitor