Secretary of State for the Home Department v. Ibrahim and Others
SECRETARY OF STATE FOR THE HOME DEPARTMENT v IBRAHIM and others
Immigration Appeal Tribunal
 Imm AR 1
Hearing Date: 5 April 1993
5 April 1993
Appeal -- preliminary issue raised before adjudicator -- whether Tribunal had jurisdiction to hear an appeal from an adjudicator's determination of a preliminary issue. Immigration Act 1971 ss 13(2), 19(1), 20(1), 22(1); Immigration Appeals (Procedure) Rules 1984 rr 8(3), 11.
Held: The respondents, citizens of Somalia, had sought to obtain visas for entry to the United Kingdom by applying through their sponsor direct to the Home Office. The applications were refused. The Home Office advised the respondents that they had no right of appeal to an adjudicator against those refusals. The respondents sought to challenge that opinion by appealing to an adjudicator. The adjudicator determined, as a preliminary issue, the question whether or not he had jurisdiction to hear an appeal: he concluded he had. The Secretary of State sought to challenge that conclusion before the Tribunal. When the case came before the Tribunal both parties sought a preliminary ruling as to whether the Tribunal had jurisdiction to entertain an appeal from a preliminary ruling by an adjudicator. Held 1. An adjudicator's determination of a preliminary issue per se was to be distinguished from his determination of an issue, such as the admissibility of evidence, that arose during a substantive hearing, and on which following Lila no appeal lay to the Tribunal. 2. Where a preliminary issue arose for determination before a substantive hearing was held, as in this instant case, there was a right of appeal to the Tribunal against the adjudicator's determination.
Cases referred to in the Judgment: R v Imnmigration Appeal Tribunal ex parte Nazaril Lila and anr  Imm AR 50. Secretary of State for the Home Department v Said Ken'aan  Imm AR 544. Secretary of State for the Home Department v Olusegun Omishore  Imm AR 582.
Counsel: D Wilmott for the appellant; R Scannell for the respondents PANEL: Professor DC Jackson (Vice-President) Mrs J Chatwani (Vice-President), N Kumar JP
Judgment One: THE TRIBUNAL: The Secretary of State seeks to appeal against a decision of an adjudicator (Mr J Freeman) declaring on a preliminary issue that the appeals of the respondents before us should proceed to a hearing. The substantive preliminary issue before the adjudicator was whether a valid appeal had been lodged by the respondents who seek to appeal from a response to an application made in this country for visas to enter this country. The adjudicator decided that there was a refusal of an application for an entry clearance and, as we have said, ordered the appeals to proceed to a hearing. On the matter coming before the Tribunal, Mr Scannell indicated that he wished to raise the matter of jurisdiction of the Tribunal to hear an appeal from the decision of the adjudicator. Mr Scannell and Mr Wilmott requested the Tribunal first to rule on that matter. As the Tribunal has decided in previous cases, the grant of leave to a party does not preclude either the other party or the Tribunal from raising the matter of jurisdiction at the hearing. The Tribunal therefore agreed to rule on its jurisdiction to consider the appeal. On that ruling will depend upon whether there is any consideration of the preliminary issue decided by the adjudicator. The history of the case as it is relevant to this ruling is that by letter (in this case 31 March 1992) the Home Office wrote in relation to the applications made by the respondents: "I am writing with reference to your request to authorise the issue of visas to the above named in advance of a formal application being made at a British Diplomatic Post overseas. We have very carefully considered this request but given the particular circumstances of the case we do not believe that the individuals concerned would qualify under the Immigration Rules for the issue of visas. We have also considered whether they should be issued with visas to enter the United Kingdom exceptionally outside the Immigration Rules but we do not believe that there are sufficient grounds to justify this." The letter also dealt with the question of a right of appeal. It reads: "Applicants do not have a right of appeal where adverse decisions have been reached on visa applications submitted direct to the Home Office. We have previously advised in such cases that the applicant should pursue an entry clearance application at their nearest British Diplomatic Post overseas in the normal manner and, in the event of the application being refused, a right of appeal will be available. However, after consultation with the Foreign and Commonwealth Office it has been decided that in such cases the sponsor, or a representative acting on his behalf, can write direct to the British Diplomatic Post (normally Addis Ababa) to make a visa application on behalf of his relatives. In the event of such an application being refused a right of appeal will be available. The letter of application needs to state in clear and unambiguous terms the type of visa application being made, the full names, dates of birth, nationality and location of the applicants and the full details of the sponsor." The respondents' solicitors then wrote to the appellate authority asking that the matter be listed for hearing on the preliminary issue as to whether or not the applicants had a right of appeal. In response, the Deputy Chief Adjudicator directed that the matter be listed for hearing on that issue and, by notice of 24 September 1992 headed "Preliminary Issue", the matter was set for hearing on 12 October 1992. The issue was duly considered and, on 9 November 1992 under the heading "Ruling", the adjudicator promulgated his decision. The issue considered in this ruling is whether the Secretary of State has a right of appeal from the adjudicator's decision. The applicable legal framework The framework is set out in the Immigration Act 1971 and the Immigration Appeals (Procedure) Rules 1984. The Immigration Act 1971 provides for appeals from specified types of decisions of the Secretary of State, entry clearance officer and immigration officer. The respondents assert that a right of appeal exists in this case, by virtue of section 13(2) of the Act, which provides for an appeal from a refusal of an entry clearance. The scope of the jurisdiction of adjudicators and the Tribunal is set out in sections 19 and 20 of the Act. So far as relevant these read: "19(1) . . . an adjudicator on an appeal to him under this Part of this Act -- (a) shall allow the appeal if he considers -- (i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently; and (b) in any other case, shall dismiss the appeal." "20(1) Subject to any requirement of rules of procedure as to leave to appeal, any party to an appeal to an adjudicator may, if dissatisfied with his determination thereon, appeal to the Appeal Tribunal, and the Tribunal may affirm the determination or make any other determination which could have been made by the adjudicator." Section 22 of the Act authorises the making of rules of procedure by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament. Section 22(1) provides: "22(1) The Lord Chancellor may make rules (in this Act referred to as "rules of procedure") -- (a) for regulating the exercise of the rights of appeal conferred by this Part of this Act; (b) for prescribing the practice and procedure to be followed on or in connection with appeals thereunder, including the mode and burden of proof and admissibility of evidence on such an appeal; and (c) for other matters preliminary or incidental to or arising out of such appeals, including proof of the decisions of adjudicators or the Appeal Tribunal." The current rules, made before the transfer of the relevant function to the Lord Chancellor, are the Immigration Appeals (Procedure) Rules 1984. Rule 11 of those rules provides for the determination of a preliminary issue. So far as relevant it reads: "11(1) Where the respondent to an appeal makes such an allegation as is mentioned in Rule 8(3), the appellate authority may, and at the request of the respondent shall, determine the validity of the allegation as a preliminary issue. (2) Unless in consequence of the determination of such a preliminary issue the appellate authority determines that -- (a) it has no jurisdiction to proceed, or (b) the appeal should be dismissed, the respondent shall, by such time as the appellate authority directs, submit to that authority a written statement of the facts relating to the decision or action in question to the extent that by virtue of the provisions of Rule 8(3) those facts have not already been furnished and a copy of such a statement shall be given to the appellant. (3) Save where, in consequence of a determination of a preliminary issue, an appellate authority makes a further determination to the effect specified in sub-paragraph (a) or (b) of paragraph (2) above, in any hearing before the authority, at the commencement of the proceedings subsequent to the determination of the preliminary issue, the appellate authority shall give to the respondent an opportunity to amplify orally the written statements given in accordance with Rule 8(1) or paragraph (2) above." Rule 8(1) refers to the obligation on the Home Office to provide an explanatory statement and to refer the statement to an adjudicator or the Tribunal. Rule 8(3) reads: "8(3) Where the respondent to an appeal alleges that -- (a) the appellant is not entitled to appeal -- (i) by virtue of a provision of the Act specified by the respondent, or (ii) by reason that a passport or other travel document, certificate of entitlement, entry clearance or work permit (or any part thereof or entry therein) on which the appellant relies is a forgery or was issued to, and relates to, a person other than the appellant, or (iii) by reason that notice of appeal has not been signed by the appellant or by a person duly authorised by him in that behalf or, in the case of an appellant who is a minor or who is for any reason incapable of acting, by any person acting on his behalf; or (b) the notice of appeal was not given within the period permitted by Rule 4, the written statement referred to in paragraph (1) above shall include that allegation but it shall not be necessary for the respondent to include in the statement facts which are not relevant to the allegation." In previous decisions the Tribunal has held that: i. once an appeal notice is lodged, the appellate authority has jurisdiction to consider whether there is a valid appeal (Ken'aan  Imm AR 544); ii. the preliminary issue procedure is applicable whenever the Secretary of State contends that, having regard to the relevant provisions of the statute, an applicant has no right of appeal, (Ken'aan above and Omishore  Imm AR 582). The issue of whether an appeal would lie to the Tribunal from a decision of an adjudicator turns on the meaning of "his determination thereon" in section 20(1) of the Immigration Act 1971. That phrase was the subject of the Divisional Court decision in R v Immigration Appeal Tribunal ex parte Lila  Imm AR 50. There, the contention was that an appeal would lie to the Tribunal from an adjudicator's ruling in the course of proceedings before him as to the admissibility of evidence. The court's view of the phrase was that it clearly referred: ". . . to the determination or decision of the adjudicator on the appeal, either allowing or dismissing it under section 19, and not to an incidental or interlocutory decision arising in the course of an appeal. The words of section 20(1) are 'his determination thereon', not 'a determination therein'." The court added that rule 11 of the procedure rules "which provides for the determination of certain specific preliminary issues which could dispose of the appeal" was not inconsistent with its interpretation of section 20(1). In Omishore the Tribunal affirmed its view that an appeal would lie from a decision by an adjudicator within the preliminary issue procedure that an appeal should be dismissed or that no appeal was before him, saying that such a decision: ". . . shuts the door on the appellant with just as much a finality as when the appellant has had his say and the appeal has been dismissed. In respect of the matter before the adjudicator it is a 'determination thereon' rather than 'therein'." In Omishore the Tribunal expressed the view that this reasoning also applied to a decision by an adjudicator that an appeal would lie on the grounds that Lila has no application to the preliminary issue procedure. In the Tribunal's view in that case, the preliminary issue procedure stands on its own and calls for a determination on that issue which itself stands on its own. It is this point which is now before us again. The contentions Mr Scannell argued that the inevitable conclusion from the wording of the statute was that there was no appeal to the Tribunal from any determination which did not bring finality to the issue before the adjudicator. Mr Scannell argued that the phrase "the determination thereon" lying at the centre of section 20(1) must refer back to section 19(1), that provision specifically referring to the power of the adjudicator to allow or dismiss "the appeal". That appeal, said Mr Scannell, was an appeal against the decision or action as set out in sections 13 to 17 of the Act. Mr Wilmott argued that if Kenaan and Omishore were right then the respondent in the preliminary issue procedure should be able to pursue that matter to the highest appellate tribunal. The decision by the adjudicator that an appeal should proceed opened the door to proceedings, and the Secretary of State should be entitled to seek to close it without going into the areas of fact and law. There is no explanatory statement, and the only issue before the adjudicator had been determined by him. Mr Wilmott suggested that the preliminary issue procedure provided, as it were, an appeal within an appeal and, for the purposes of section 19, the decision against which the appeal was being brought was that no appeal would lie. Conclusions As Mr Scannell said, the consequence of holding that the Secretary of State could not appeal from a decision by an adjudicator in an applicant's favour on a preliminary issue would mean the necessity of the Secretary of State to resort to judicial review or to conduct the appeal in substance. It seems to us that, given the preliminary issue procedure, it would obviously make sense for that issue to be treated, as the Tribunal said in Omishore, on its own and for the appellate process to be fully available in regard to it. Mr Scannell rightly said that there is no reference to the preliminary issue in that part of the procedure rules referring to the Tribunal. However, he agreed that as the part of the procedure rules applicable to appeals to the Tribunal apply "from the determination of an adjudicator", the issue is whether the decision in this case was such a determination ie in the context of the appeal before the adjudicator, a "determination thereon" rather than a determination "therein". Mr Wilmott's suggested approach attracted us, but it does seem difficult to construe the meaning of the "appeal" in section 19 as other than the appeal from the decision or action referred to in sections 13 to 17. We prefer a slightly different approach. Rule 11 of the procedure rules makes it clear that, so far as the rules are concerned, the preliminary issue is a matter for "the determination" of an adjudicator. Indeed, rule 11(3) envisages that, where an adjudicator brings the proceedings to an end on the basis that he has no jurisdiction to proceed or that the appeal should be dismissed, there should be two determinations. That provision underlines the approach of the Tribunal that, where proceedings are brought to an end on any basis, the determination fits directly within section 19(1) and an appeal will lie under section 20. Where, as in this case, the proceedings are to continue, clearly within the framework of rule 11 there is nevertheless a "determination" of a preliminary issue. We appreciate that the content of the rules cannot control the meaning of the Act and that the label given to a particular decision should not be relied on exclusively to categorise that decision. Nevertheless it seems to us that the approach of the rules is that a decision on a preliminary issue is as much a "determination" as is the decision on the substantive appeal. We find the route into the rules through section 22(1) of the Act. This authorises rules "for regulating the exercise of the rights of appeal". No argument was put to us that the rules were ultra vires the Act by regulating the rights of appeal so as to create a "preliminary issue" process. In substance, in our view, this means that the appeal process is divided, where appropriate, into two stages, and that the first stage, just as the second, is concluded by a determination. If this be right, there is no need to seek to read section 19 as referring to any appeal save that which brings the preliminary issue about. It means that through section 22(1) the rights of appeal are to be exercised in two stages and that the "determination thereon" within section 20 becomes a determination in respect of each stage. In this way, we see the "preliminary issue" procedure being fitted into the framework of the Act and authorised by it. As we have said, in our view, the decision on a preliminary issue is quite different in nature to a decision taken during the proceedings in respect of an appeal on substantive matters. It makes sense for such proceedings to have to end before an adjudicator before an appeal can be brought on an interlocutory decision within those proceedings. Otherwise there would be constant delays while interlocutory matters were taken to appeal. On the other hand, the provision of the preliminary issue procedure clearly envisages that specified matters are fit for decision at a preliminary stage and that such matters should be treated as "preliminary" throughout the appellate process. We therefore rule that an appeal will lie from the adjudicator's determination of the preliminary issue. The matter will be set down for hearing.
DISPOSITION: Judgment accordingly
SOLICITORS: Solicitors for the respondents: Winstanley-Burgess
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