R v. An Adjudicator, Ex parte Umeloh

R v AN ADJUDICATOR ex parte UMELOH

Queen's Bench Division

[1991] Imm AR 602

Hearing Date: 27 June 1991

27 June 1991

Index Terms:

Removal directions -- issued following deportation order -- appeal lodged against directions but no alternative destination specified by appellant -- application to adjudicator for bail pending hearing of appeal -- whether, without an alternative destination being specified in the notice of appeal, there was a valid appeal -- whether in those circumstances an adjudicator had jurisdiction to entertain an application for bail. Immigration Act 1971 ss 17(1), 22(1), sch 2 para 29(1): Immigration Appeals (Procedure) Rules 1984 rr 6(3)(1), 8(3), 11(1).

Judicial review -- not appropriate avenue for redress where there was statutory provision for an appeal to the Immigration Appeal Tribunal. Immigration Act 1971 s 20(1).

Held:

The applicant for judicial review was subject to a deportation order. The Secretary of State issued destination directions. The applicant lodged an appeal against these directions, pursuant to section 17(1) of the 1971 Act. In his notice of appeal he specified no alternative destination. There was then an application to the adjudicator for bail pending the hearing of the appeal: the Secretary of State, in the explanatory statement, submitted that there was no valid appeal before the adjudicator because no alternative destination was specified by the appellant. Following Omishore the adjudicator held that there was no valid appeal before him, and it followed, he had no jurisdiction under paragraph 29(1) of schedule 2 to the 1971 Act, to grant bail. Before the court counsel argued that under the provisions of the 1984 Procedure Rules, even where no alternative destination was specified, there was still an appeal before an adjudicator, if notice were lodged. Held: 1. Omishore was correctly decided. Under s 17(1) of the 1971 Act an appeal could be brought against removal directions on a particular ground which requires an appellant to specify a different country to which he should be removed. If no alternative destination be specified, the appeal has no foundation. 2. It followed that in this instant case there being no valid appeal before the adjudicator, he had no jurisdiction to grant bail. 3. Following Omishore an adjudicator's determination that he had no jurisdiction in a particular matter, was itself a determination properly appealable before the Tribunal. Judicial review was not the appropriate remedy.

Cases referred to in the Judgment:

Secretary of State for the Home Department v Olusegun Omishore [1990] Imm AR 582.

Counsel:

A Riza QC for the applicant; I Burnett for the respondent PANEL: Auld J

Judgment One:

AULD J: This is an application by Mr Umeloh seeking leave to apply for judicial review in respect of the ruling of an adjudicator of 13 June declining to grant bail to him pending an appeal against directions to remove him consequential upon a notice of deportation made under section 17(1)(b) of the Immigration Act 1971. The short point on this application, which has taken two hours to argue and a good deal of detailed consideration of the Act and its schedules and the regulations made under it, is whether there was in this case an appeal to an adjudicator under section 17(1) of the Act which gave him power under paragraph 29(1) of schedule 2 of the Act to grant bail pending appeal. Where directions are given under section 17(1) of the 1971 Act for a person's removal from the United Kingdom on the ground, inter alia, that a deportation order has been made against him, his right of appeal is severely limited by that section. He may appeal to an adjudicator against the removal directions on the ground only that he ought to be removed, if at all, to a different country or territory specified by him. The issue more precisely here is whether, when a notice of appeal is lodged against removal directions given under that provision in reliance only upon some other ground, there is nevertheless an appeal before the adjudicator by virtue of which he has power to grant bail under paragraph 29(1) of schedule 2. Here an order of deportation was made on 15 April 1991. Directions for removal were given on 15 May 1991. A notice of these directions informed the appellant of his limited right of appeal under section 17(1)(b) of the Act and the nature of it. An appeal was lodged just within time against those directions. The ground stated in the appeal was as follows: "The Secretary of State should have made further enquiries regarding our client's academic pursuits and family ties in the United Kingdom before making a deportation order." Quite clearly that did not constitute a ground of appeal under section 17(1)(b) of the Act. The matter came before an adjudicator and was argued, it seems, as a preliminary issue as to whether the applicant was entitled to appeal under the provisions of the Immigration Appeals (Procedure) Rules 1984, paragraph 8(3) and paragraph 11(1). Under paragraph 8(3) provision is made for the respondent to the appeal to serve a written statement on the question of entitlement to appeal, where, inter alia, it is maintained that the appellant is not so entitled by virtue of the provision of the Act specified by the respondent. In my judgment, that clearly entitles the Secretary of State in a purported appeal against a direction given under section 17(1)(b) to challenge the appellant's entitlement to appeal because the only ground of appeal for which that provision expressly provides is not the ground of the purported appeal. That is what happened here. The Home Secretary, by an explanatory statement dated 4 June 1991, submitted for the consideration of the adjudicator that, as the appellant's appeal to him was by virtue of section 17(1)(b) of the 1971 Act, the appellant should specify a country different from that to which it was proposed to remove him and the appellant had failed to do that in his purported grounds of appeal. The adjudicator, by virtue of paragraph 11(1) of the 1984 Rules, was empowered to determine the validity of that challenge to the purported appeal. It is said by Mr Riza that the decision he made, in refusing bail because, in his view, he had no jurisdiction to do so because there was no valid appeal under that provision, was wrong. He submits that the matter is not governed by section 17(1)(b) of the Act but by a consideration of the 1984 rules in the context of their having been made under section 22(1) of the Act. In short, he contends that those rules have a life of their own so far as section 17 is concerned and that an appeal expressed on whatever grounds, however irrelevant and unconnected to the only possible ground under section 17, is nevertheless an appeal. This matter has been considered by the Immigration Appeal Tribunal in the case of Omishore [1990] Imm AR 582. I take the same view as that experienced tribunal. As section 17(1) provides that an appeal may be brought on a particular ground, and that ground requires the appellant to specify a different country, the failure to so specify means, in my judgment, that the appeal has no foundation. As the Immigration Appeal Tribunal said in the case of Omishore, the potential appellant has not brought his case within the statutory provision defining his right of appeal. The adjudicator in this case took that view. In doing so, he referred to rule 6(3)(c) of the 1984 rules, which provides that, in identifying the particulars to be set out in a notice of appeal, the appellant must set out the grounds of appeal on which he intends to rely and then continues: "Without prejudice to paragraph (c) above, where the notice of appeal relates to a right of appeal under section 17 of the Act, the notice shall include a statement which specifies the reasons why the appellant objects to removal to the county or territory specified by the respondent, identifies the country or territory to which the appellant claims he ought to be removed (if at all) and refers to evidence which demonstrates or tends to show that the country or territory so identified would admit the appellant if he were to be removed there." The adjudicator took the view clearly that that paragraph was not complied with here. Far from it in fact. The grounds of appeal, such as they were, indicated a wish to remain in this country. I agree, therefore, with the adjudicator's finding in conformity with the decision of the Immigration Appeal Tribunal in the case of Omishore that the notice of appeal was fatally flawed -- so flawed that it did not constitute an appeal under section 17(1). That was clearly a determination that he was entitled to make and one that would have been subject to appeal to an Immigration Appeal Tribunal under section 20 of the 1971 Act. That, too, follows the reasoning of the Immigration Appeal Tribunal in the case of Omishore. Accordingly, in my judgment, the applicant has not shown an arguable case that the adjudicator erred in refusing to consider bail on the ground of lack of jurisdiction here. Even if that were not the case, the proper mode of challenge is not by way of application for leave to move for judicial review but by way of an appeal from that determination for which specific provision is made in rules 8(3) and 11 of the 1984 rules to an Immigration Appeal Tribunal under section 20(1) of the Act. The application is accordingly refused.

DISPOSITION:

Application dismissed

SOLICITORS:

Pascalides, Pillai & Jones; Treasury Solicitor