Tamakloe v. Secretary of State for the Home Department
| Publisher | United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority |
| Author | Immigration Appeal Tribunal |
| Publication Date | 10 July 1991 |
| Citation / Document Symbol | [1991] Imm AR 611 |
| Cite as | Tamakloe v. Secretary of State for the Home Department, [1991] Imm AR 611, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 10 July 1991, available at: https://www.refworld.org/cases,GBR_AIT,3ae6b6338.html [accessed 17 September 2023] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
TAMAKLOE v SECRETARY OF STATE FOR THE HOME DEPARTMENT
IMMIGRATION APPEAL TRIBUNAL
[1991] Imm AR 611
Hearing Date: 10 July 1991
10 July 1991
Index Terms:
Appeal -- withdrawal -- unqualified representative -- whether an unqualified representative acting on the instructions of the appellant, had power to withdraw an appeal -- the ambit of the control over representation embodied in the Procedure Rules. Immigration Act 1971 (as amended) s 3(5)(a): Immigration Appeals (Procedure) Rules 1984 rr 6, 26.
Held:
The appellant was a citizen of Ghana. The Secretary of State had decided to initiate deportation proceedings against him. The appellant lodged an appeal. Before the hearing the appeal was withdrawn in writing by the appellant's then representative. That representative was not a person to whom rights of audience were given before the immigration appellate authorities, by the 1984 Procedure Rules. The appellant's new representative contended on appeal that the representative without right of audience had had no power to withdraw the earlier appeal against a notice of intention to deport. Held: 1. Rule 26 of the 1984 Procedure Rules refers only to appearances before the immigration appellate authorities. The restriction is on rights of audience. 2. It followed that the representative of the appellant had had power to withdraw the appeal always providing (as for the purpose of this case it was assumed) that the representative was properly authorised by the appellant.Cases referred to in the Judgment:
Adolphus Lokko v Secretary of State for the Home Department [1990] Imm AR 111.Counsel:
Miss C Michie for the appellant; D Wilmott for the respondent PANEL: Professor DC Jackson (Vice-President), N Kumar Esq JP, BJS Edmond EsqJudgment One:
IMMIGRATION APPEAL TRIBUNAL: The appellant, a citizen of Ghana, appeals against the decision of an adjudicator (Mr RG Care) dismissing his appeal against a decision to make a deportation order against him by virtue of section 3(5)(a) of the Immigration Act 1971. The decision to make the deportation order was taken on 17 July 1989 and, following a withdrawal of the appeal by the appellant's then representative (Edward Lampp and Company) on 25 October 1989, a deportation order was signed, and it appears that the appellant is no longer in the country and had since applied for a revocation of the order. The sole issue in these proceedings is whether the withdrawal by Edward Lampp and Company was effective. Through a misplacement of the case file there is no record of the proceedings before the adjudicator before us, but Miss Michie and Mr Wilmott agreed that that record was not critical to the issue before us. The letter from Edward Lampp and Company was set out in the adjudicator's determination. It reads: "Appellant Mr Edward Tehgeh Tamakloe, reference TH/11631/89, Hearing date 30 October 1989, Matter -- withdrawal of appeal. We refer to your letter of 18 September 1989 confirming the above hearing date. We confirm we have taken our further instructions on this matter and the appellant has instructed we withdraw the appeal. He has indicated it his intention however to make representations to the Under Secretary of State to reconsider his matter. We should be obliged if in these circumstances you would kindly notify the Home Office Presenting Officer Unit of the above withdrawal and cancel the hearing accordingly. Yours faithfully Edward Lampp & Co" There is no evidence that that letter was not authorised, and we proceed on the basis that it was authorised by Mr Tamakloe. Miss Michie's argument is simple and direct -- that Edward Lampp and Company, not being solicitors, required the leave of the appellate authority to represent Mr Tamakloe in any proceedings before it. That leave not having been given, the withdrawal was invalid and, hence, there was no power to make a deportation order. It follows that by the terms of section 5 of the Immigration Act 1988, the appellant's appeal should be allowed. The applicable Procedure Rules The procedure concerning appeals is set out in the main in the Immigration Appeals (Procedure) Rules 1984. There is no doubt that in certain respects a person who does not qualify to represent another under those rules requires leave to do so. Representation is the subject of rule 26. This reads: "26(1) In any proceedings on an appeal, a party to the appeal may act in person or be represented or may appear -- (a) in the case of the appellant, by counsel or a solicitor, a consular officer or a person performing functions corresponding to those of a consular officer, a person appointed in that behalf by any voluntary organisation for the time being in receipt of a grant under section 23 of the Act or, with the leave of the appellate authority, by any other person appearing to the authority to be acting on behalf of the appellant; (b) in the case of the Secretary of State or any officer, by counsel or a solicitor or any officer of the Home Department; (c) in the case of the United Kingdom Representative of the United Nations High Commissioner for Refugees, by a person appointed by him in that behalf. (2) A person representing a party to an appeal in accordance with paragraph (1) above may take all such steps and do all such things relating to the proceedings as the person whom he represents is by these Rules required or authorised to take or do". Mrs Wilmott argued in part that the whole basis of Miss Michie's argument was misconceived in that, the withdrawal being authorised, it was an act of Mr Tamakloe and the issue of representation was irrelevant. However, Miss Michie's contention was that the rules provided for a person to represent another, and the whole tenor of the contention is that the rules provide a protective screen against unqualified representation. If Miss Michie is right, it is the question of authorisation which is irrelevant once the withdrawal is made on behalf of and not by an appellant. The flaw in Mr Wilmott's argument is demonstrated by its logical conclusion, ie that if the appellant authorised another to represent him at a hearing, he would be representing himself. That is plainly not so and it is also plain that rule 26 does restrict the power of an appellant to be represented without the leave of the authority. The question is the extent of that prohibition and this turns, in part, on the meaning to be given to "proceedings" in the rule and, in part, whether the rule provides differently for different stages of the proceedings. Miss Michie argues that "proceedings" in rule 26 referred to any matter before the appellate authority subsequent to the sending of the notice of appeal to that authority. Mr Wilmott, on the other hand, contended that the construction of "proceedings" may differ in accordance with the context in which the word appears. In support of her argument, Miss Michie drew our attention to rule 6 which is concerned with the lodging of the notice of appeal. That rule provides that the notice should be lodged either with the immigration officer, entry clearance officer or the Secretary of State depending upon the office held by the person who took the decision. Rule 6(5) provides that the notice of appeal should be signed by the appellant "or by a person duly authorised by him in that behalf . . .". Rule 6(6)(a) reads: "6(6)(a) Subject to paragraph (7) below, an officer to whom notice of appeal has been given in accordance with these Rules shall, unless the appellant subsequently gives that officer written notice of the withdrawal of his appeal, take such steps as are necessary to ensure that the notice of appeal is referred to the appropriate appellate authority together with such particulars relating to the nature and grounds of the appeal as have been given by the appellant". (Rule 6(7) deals with the action to be taken if the decision against which the appeal is brought has subsequently been reversed, withdrawn or varied). Mr Wilmott contended that the Procedure Rules were not about control over the representative but, in the present context, ensuring that the appeal is properly withdrawn. In arguing this, he pointed out that on the authorities an appeal might be withdrawn by counsel or solicitor properly instructed to act for an appellant, and that where that occurs it was not open to an appellant to argue that it was done without authority. Secondly, Mr Willmott contended that paragraphs (a), (b) and (c) of rule 26 were concerned with representation, and applied only to "appearance" on behalf of another. Miss Michie countered by pointing to rule 26(2) which, she said, on Mr Wilmott's reading of the rule, would not make sense. The adjudicator rejected Miss Michie's argument that she put again to us, that a distinction had to be drawn in regard to proceedings because of the forwarding of the notice of appeal to the appellate authority. The adjudicator said that he could not see why there should be no need for an approval of a representative before the notice reached the authority, but a need afterwards. The adjudicator continued: "It is only when an appeal comes to hearing or perhaps a few days before that an Adjudicator is usually seized of it, and in practical terms therefore without a radical and possibly expensive change in administrative procedures it is difficult to see how a representative could receive authority earlier than at a hearing. Prior to that if the rules do require leave perhaps leave is assumed to have been given tacitly". The adjudicator then said there was much to be said for Miss Michie's arguments, but held that the essential point was whether the appellant had authorised the withdrawal and not whether the rules require approval to a representative or not. As we have said, in our view, that was not the issue before the adjudicator and is not the issue before us. The issue is, as the adjudicator earlier implied, whether there being authority or not, Edward Lampp and Company required leave of the appellate authority to act as Mr Tamakloe's representative. We agree with Mr Wilmott that the word "proceedings" in the rules must be construed in their context, but lacking a context which limits its meaning, we, like the adjudicator and Mr Wilmott, can see no rational distinction to be drawn according to whether the notice of appeal is with the Home Office or the appellate authority. As the Tribunal have held (see Lokko [1990] Imm AR 111) an appeal commences with the lodging of the notice of appeal. While the Procedure Rules could distinguish between various stages of the proceedings, this must flow from the context of the use of the word in the rules and not from the word "proceedings" itself. Turning to rule 26 we agree with Mr Wilmott that in listing representatives, the rule is referring only to appearance. The rule provides general authority for an appellant to be represented or to act in person, but imposes the control referred to by Miss Michie in respect of appearance. So by rule 26 the authorised representative of a person may withdraw the appeal before or after the notice is with the appellate authority -- just as the notice of appeal may be signed by such a representative (rule 6(5)). We see no inconsistency between rule 26(2) and our reading of rule 26(1). Rule 26(2) simply authorises a person representing a party in accordance with (1) (ie in the case of appearance subject to the control imposed by (1)) to act fully on behalf of that party. Such a construction fits with a sensible underlying principle that the appellate authority is able effectively to monitor appearance before it. However, to create a paternalistic protective scheme in respect of appellants would, as the adjudicator said, require an expansion in administrative procedures and practicality, the overall advantage of which would seem doubtful. We add only that the authority point applies to a person who appears with or without leave equally. The ability of such a person to withdraw the appeal, as in this case, stems from the general nature of the authority to represent. This, in the case of appearance, includes an authority to represent the appellant as the representative sees fit. However, were it to be established that the person appearing had acted contrary to express instructions by the appellant, then on general principles there would be no withdrawal. We conclude therefore that rule 26 permits representation, imposes control only in respect of appearance and does not apply to the withdrawal in the present case. The appeal is dismissed.DISPOSITION:
Appeal dismissedSOLICITORS:
Jane Coker & CoCopyright notice: Crown Copyright
