Hussain v. Secretary of State for the Home Department

HUSSAIN v SECRETARY OF STATE FOR THE HOME DEPARTMENT TH/2919/71

Immigration Appeal Tribunal

[1972] Imm AR 264

Hearing Date: 31 May 1972

31 May 1972

Index Terms:

Jurisdiction -- Directions by appellate authority -- Tribunal -- Application by appellant in case part-heard by adjudicator -- Whether jurisdiction in Tribunal to consider application and give directions -- Immigration Appeals (Procedure) Rules 1970, r 33(b).

Held:

The Immigration Appeal Tribunal has no jurisdiction to give directions at the request of a party to an appeal which is part-heard by an adjudicator, since on a true construction of r 33(b) of the Immigration Appeals (Procedure) Rules 1970 an appellate authority can only give directions in connection with an appeal which is before it. Accordingly the Tribunal had no jurisdiction to consider an application by an appellant for a declaration that the respondent should comply with a direction given by the adjudicator relating to the conduct of the appeal before him.

Introduction:

The facts and rule 33(b) are set out in the determination reported below.

Counsel:

Z. Butt of the League of Overseas Pakistanis, for the appellant. W. J. Bohan for the respondent. PANEL: Sir Derek Hilton (President), P. N. Dalton Esq. (Vice-President), Sir Gordon Whitteridge.

Judgment One:

THE TRIBUNAL: This appeal against the refusal to grant the appellant Khadim Hussain an entry certificate to enable him to join Mohd Bashir and Razina Bi in the United Kingdom as their dependent son was heard by an adjudicator (Mr T D Healy) on 17 January and 2 March 1972 when Mr Z Butt appeared for the appellant and Mr A Walmsley represented the respondent. Owing to alleged intimidation of the appellant and incompetent interpretation at the interview with the entry certificate officer the adjudicator on 2 March 1972 directed that the appellant be interviewed again by another entry certificate officer, preferably a senior officer, and in the presence of a representative of the appellant's choice. On 25 April 1972 a representative of the Home Office wrote to the adjudicator's clerk referring to the direction of 2 March 1972 and stating that in the light of the Tribunal's decision in the case of the Secretary of State for the Home Department v Michael Joseph Fardy n1 the respondent could not regard himself as bound by such a direction but that he had investigated the complaint on which the direction was founded. With the letter were enclosed copies of correspondence between the Home Office and the Second Secretary (Immigration) at Islamabad. n1 [1972] Imm AR 192, TH/3147/71. On 27 April 1972 on the application of Mr. Butt on behalf of the appellant the adjudicator adjourned the case sine die to enable the appellant to make an application to the Tribunal for a declaration that the adjudicator's direction should be complied with by the respondent. On 5 May 1972 Mr Butt filed with the Tribunal an application by the appellant under r 33(b) of the Immigration Appeals (Procedure) Rules 1970 for a direction relating to the further conduct of the appeal. After we had heard submissions and argument by Mr Butt in support of the application Mr. Bohan submitted that the Tribunal had no jurisdiction to consider the application as in his view there was a clear demarcation of functions between adjudicators and the Tribunal as laid down in the Immigration Appeals Act 1969 and it would impose an impossible strain under r 33 if the Tribunal were enabled to intervene at the request of one party in an appeal before an adjudicator. He then made submissions opposing the application should the Tribunal find against him on his preliminary submission. The relevant part of Rule 33 reads as follows: -- "33. An appellate authority may -- (b) give directions on any matter arising in connection with an appeal to any party who requests them." In our opinion it is inherent in the wording of r 33(b) that an appellate authority can only give directions in connection with an appeal before it. The application before us was in connection with an appeal part-heard by an adjudicator and we agreed with the submission by Mr Bohan that the Tribunal had no jurisdiction to consider the application for that reason.

DISPOSITION:

Application for direction refused.

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