Secretary of State for the Home Department v. Fardy
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT v FARDY TH/3147/71
Immigration Appeal Tribunal
 Imm AR 192
Hearing Date: 19 January 1972
19 January 1972
Deportation -- Country of destination -- Political asylum claimed on appeal against directions for removal to Irish Republic on order implementing court recommendation -- Citizen of Irish Republic not subject to conditions of admission -- Whether entitled to appeal against discretion of Secretary of State refusing asylum -- Commonwealth Immigrants Act 1962, s 9(1) -- Immigration Appeals Act 1969, s 5(3), (4) -- Cmnd 4295, paras 26, 42, 46.
Political asylum -- Deportation order made against citizen of Irish Republic on recommendation of court -- Admission to United Kingdom not subject to conditions -- Whether right of appeal against refusal of political asylum -- Discretionary power of Secretary of State -- Immigration Appeals Act 1969, s 3(1)(c) -- Cmnd 4295, paras 26, 42.
Jurusdiction -- Directions by appellate authority -- Adjudicator -- Respondent at appeal hearing directed by adjudicator at appellant's request to consider application for political asylum -- Adjudicator's direction ultra vires -- Immigration Appeals (Procedure) Rules 1970, r 33(b) -- Immigration Appeals Act 1969, s 8(5) & (6).
Held:F was a citizen of the Irish Republic against whom a deportation order was made under s 9(1) of the Commonwealth Immigrants Act 1962 following upon the recommendation of a court before which he was convicted of a number of offences. He appealed to an adjudicator under s 5 (3) of the Immigration Appeals Act 1969 against his removal to the Irish Republic.His grounds of appeal amounted to a claim for political asylum. F was unable to name any other country which would receive him, and the adjudicator (following Croning's Case,  Imm. A.R.51) dismissed the appeal under para 46 3f Cmnd 4295 n1. At F's request, and purporting to act under r 33 (b) of the Immigration Appeals (Procedure) Rules 1970 n2, the adjudicator then directed that the Secretary of State consider any application that F might make for political asylum; and, referring to the provisions regarding political asylum contained in para 26 and para 42 of Cmnd. 4295 n3, he expressed the view that if political asylum were refused F might have another right of appeal to an adjudicator under s 3(1)(c) of the Immigration Appeals Act 1969 n4; if, however, this was denied by the Secretary of State the question whether such right existed should be referred for decision to an adjudicator. n1 Paragraph 46 of Cmnd 4295 makes it incumbent on an appellant who objects to being removed to his country of citizenship to provide evidence that another country will receive him. n2 Rule 33 (b) is set out on page 196, post. n3 Paragraph 26 of Cmnd 4295 reads: "A Commonwealth citizen who does not otherwise qualify for an extension of stay may claim that, if an extension were not granted, he would have to go to a country to which he is unwilling to go owing to well-founded fear of being persecuted for reasons for race, religion, nationality, membership of a particular social group or political opinion. Any such claim will be carefully considered in the light of all the relevant circumstances." A footnote to this paragraph states that "the criterion for the grant of political asylum is in accordance with Article 1 of the Convention Relating to the Status of Refugees (Cmnd 8465)". Paragraph 42 is set out on page 196, post. It has the same footnote as para 26. n4 Section 3 of the 1969 Act deals with rights of appeal against conditions of admission, and sub-s (1)(c) provides for appeals to an adjudicator against "a refusal to revoke or vary... any condition of admission which has been imposed in (the appellant's) case". On appeal by the Secretary of State against the giving of these directions, Held (allowing the appeal): The purported directions were ultra vires and of no effect for the following reasons: -- (i)(a) Rule 33(b) of the Immigration Appeals (Procedure) Rules 1970 did not permit an appellate authority to give directions in any matter arising in an appeal to a party who had not requested them; (b) the adjudicator had sought to deal with a matter of substance under a rule of procedure; (c) the only directions which an adjudicator could ive to the Secretary of State affecting appellants to whom s 6 of the Commonwealth Immigrants Act 1962 applied were those provided for under s (8)(5) of the Immigration Appeals Act 1969 for the purpose of giving effect to a determination where the adjudicator had allowed an appeal. (ii) No right of appeal in connection with any application for political asylum would be available to F under s 3(1)(c) n4 of the Immigration Appeals Act 1969, for he was not a person who had been subject to conditions of admission, and para 26 of Cmnd 4295 was concerned with applications for political asylum only from such persons when they did "not otherwise qualify for an extension of stay". n4 Section 3 of the 1969 Act deals with rights of appeal against conditions of admission, and sub-s (1)(c) provides for appeals to an adjudicator against "a refusal to revoke or vary... any condition of admission which has been imposed in (the appellant's) case". (iii) Whether F had any "well-founded fear" such as might form the basis of an application for political asylum, this under para 42 of Cmnd 4295 was a matter for consideration by the Secretary of State in deciding to make a deportation order; but as a ground of objection to a deportation order made on the recommendation of a court it was outside the immigration appeals system.
Counsel:W. J. Bohan for the appellant Secretary of State. The respondent appeared in person. PANEL: Sir Derek Hilton (President), G. J. Brown Esq., B. J. S. Edmond Esq.
Judgment One:THE TRIBUNAL: The appeal was against the determination of an adjudicator (Mr E. J. T. Housden) in which, after dismissing the respondent's appeal against directions for his removal to the Irish Republic, the adjudicator directed that the appellant should consider any application made by the respondent for political asylum. The respondent, Michael Joseph Fardy, who was born on 28 September 1938, is an Irish national. On 17 November 1970 he was convicted at Middlesex Area Quarter Sessions of two offences of burglary and of returning to the United Kingdom while a deportation order was in force against him. He was sentenced to eighteen months' imprisonment and recommended for deportation. The appellant decided to implement the Court's recommendation and he signed a new deportation order under s 9(1) of the Commonwealth Immigrants Act 1962 in respect of the respondent on 27 July 1971 and gave directions for the removal of the respondent to the Irish Republic. The respondent appealed against the directions for his removal to the Irish Republic under s 5(3) of the Immigration Appeals Act 1969 stating his grounds of appeal as follows: -- "That a person should not be deported a country in which he has well-founded fears of persecution for reasons of race, religion, nationality, membership of a particular group or political opinion, which I hold to be true in my case." The respondent also wrote a letter amplifying these grounds of appeal. At the hearing of the appeal before the adjudicator the respondent gave evidence. He told the adjudicator why he did not wish to be sent to the Irish Republic and asked that directions be given that his request for political asylum should be considered. The respondent stated that he had applied to seven countries for right of entry but that so far he had been unsuccessful. The adjudicator dismissed the appeal as the respondent had not specified any country other than the Irish Republic, of which he was a citizen, that would receive him. The adjudicator then concluded his determination as follows: -- "However, it is clear to me that Mr Fardy wishes to claim political asylum in the United Kingdom on various grounds which are set out in a letter attached to his notice of appeal dated 1 November 1971. Mr Laws, who appears for the Secretary of State, says that the matters set out in that letter have already been considered as part of the process of issuing a deportation order. I am not satisfied that this is in fact true. Mr Fardy says that he had petitioned the Secretary of State and has not received an answer. There is certainly no reference to the grounds on which Mr Fardy claims political asylum in the Home Office statement dated 21 December 1971. I emphasize that an application to remain here for political asylum is entirely separate from any question of a deportation order. An immigrant can apply for political asylum whether or not he is about to be deported and the matter of political asylum is clearly dealt with in pra 26 n5 of Cmnd 4295. It is again dealt with under the section of that same Command Paper dealing with deportation, at para 42. n5 n5 Paragraph 26 is set out in footnote 3, ante. Paragraph 42 is set out on page 196, post. I consider that I would be failing in my duty as an adjudicator if I allowed this man to be deported before his application to remain here for political asylum had been properly considered. He has asked me to give directions with regard to his application for political asylum and I am thus enabled to do so by r 33(b) of the Immigration Appeals (Procedure) Rules 1970 n6. I therefore give directions that the Secretary of State shall consider any application made by Mr Fardy for political asylum and that in the event of his refusing such application the matter shall be referred to an adjudicator as follows. If it is accepted by the Secretary of State that Mr. Fardy has in such circumstances a right of appeal (for example under s 3(1)(c) of the Immigration Appeals Act 1969) the matter may properly be considered on appeal by an adjudicator. If the Secretary of State denies that Mr. Fardy has such a right of appeal I consider that the question whether such right exists or not must similarly be put to an adjudicator for a definitive decision." n6 Rule 33(b) is set out on page 196, post. The appellant applied for leave to appeal to the Tribunal on the grounds that the adjudicator, having dismissed the appeal against directions for the removal of the respondent to the Republic of Ireland, had no power in law to direct that the appellant should consider an application by the respondent for political asylum. Leave to appeal was granted. At the hearing of the appeal before us we heard argument and submissions by by Mr Bohan and by the respondent in person. Mr Bohan submitted: -- (1) The respondent could not appeal under s 3(1)(c) of the Immigration Appeals Act 1969 as this sub-section only applied to Commonwealth citizens who were admitted conditionally. The respondent had not been so admitted. (2) The only power of an appellate authority to give directions was under s 8(5) of the Immigration Appeals Act 1969 in cases where appeals were allowed. (3) Rule 33(b) of the Immigration Appeals (Procedure) Rules 1970 permitted an appellate authority to give directions on any matter to any party who requested them. That rule did not permit binding directions to be given to another party. (4) The adjudicator went outside the bounds of the appeal before him. He had already dismissed the appeal and he then purported to attempt to give Mr Fardy a further right of appeal. In reply the respondent said he did not have copies of the relevant statutes and regulations. We explained the legal position to him and he addressed us fully on the reasons for his request to the adjudicator to give directions. The respondent had petitioned the appellant and later written several letters to which he had not received a reply. The deportation order in this case was made under the provisions of s 9(1) of the Commonwealth Immigrants Act 1962, following a recommendation for deportation by a court, against which the respondent had no right of appeal within the immigration appeal system. The respondent had, however, under s 5(3) of the Immigration Appeals Act 1969, a right of appeal against the directions given for his removal to the Republic of Ireland, of which country he is a citizen. He exercised this right of appeal to an adjudicator but his appeal was dismissed as he was unable to show that any other country would receive him (para 46 of Cmnd 4295 refers). The respondent's grounds of appeal were, in effect, a request for political asylum. In his determination the adjudicator said that he would be failing in his duty if he allowed Mr Fardy to be deported before his application to remain in this country for political asylum had been fully considered. He referred in his determination to para 26 and para 42 of Cmnd 4295 and to the right of appeal under s 3(1)(c) of the Immigration Appeals Act 1969. In our opinion para 26 and s 3(1)(c) are not applicable to this case. Section 3(1)(c) gives a person a right of appeal against a refusal to revoke or vary any condition of admission which has been imposed in his case. Paragraph 26, which is contained in Part A of Cmnd 4295, deals with an application for political asylum in a case where the applicant, being subject to conditions of admission, has been refused an extension of stay. The respondent in this case was not subject to conditions of admission. Paragraph 42 of Cmnd 4295 states that: --
"a Commonwealth citizen will not be deported if this would mean his going to a country to which he is unwilling to go owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular group or political opinion."Whether or not there are well-founded fears in any particular case is a matter for consideration by the Secretary of State in deciding whether to make a deportation order, but when an order has been made following a Court recommendation there can be no appeal on that account as such a deportation order is outside the immigration appeal system. In his determination the adjudicator purported to give directions, under r 33(b) of the Immigration Appeals (Procedure) Rules 1970, to the Secretary of State to consider any application made by Mr Fardy for political asylum. Rule 33(b) read as follows: -- "33. An appellate authority may -- (b) give directions on any matter arising in connection with an appeal to any aprty two request them." This rule is a rule of procedure made, under s 11 of the Immigration Appeals Act 1969, for the purpose of giving directions to any party who requests them. By attempting to give directions to the Secretary of State in this case the adjudicator was giving directions to a party who had not requested them. Further he was dealing with a matter of substance rather than of procedure. The only directions which can be given by an adjudicator within the immigration appeal system, so far as Commonwealth citizens and citizens of the Irish Republic are concerned, are those under s 8(5) of the Immigration Appeals Act 1969 for the purpose of giving effect to a determination where an appeal has been allowed. n7 In our view the directions purported to have been given by the adjudicator in this case are ultra vires and of no effect. n7 Under sub-s (6) of s 8 of the Act of 1969 directions given by an adjudicator under sub-s (5) "need not be complied with so long as an appeal can be brought against his determination and, if such an appeal is duly brought, so long as the appeal is pending".
Disclaimer: Crown Copyright
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.