Sokhey v. Secretary of State for the Home Department

SOKHEY v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/744/73

Immigration Appeal Tribunal

[1973] Imm AR 90

Hearing Date: 4 May 1973

4 May 1973

Index Terms:

Practice and procedure -- Preliminary issue at hearing -- Notice of appeal -- Time limit for giving notice exceeded -- Circumstances occasioning delay in giving notice of appeal on refusal to vary conditions of entry -- Appellant's correspondence not dealt with during absence from her last known address -- Whether appeal should proceed "by reason of special circumstances" notwithstanding notice of appeal was out of time -- Immigration Appeals (Procedure) Rules 1972 (SI 1972 No 1684), rr 4(5), 11(4), 12(e).

Notice of appeal -- Time limit for giving notice exceeded -- Preliminary issue before adjudicator -- Circumstances occasioning delay in giving notice of appeal on refusal of variation of conditions of entry -- Temporary absence of appellant from last known address with relatives and notice of refusal sent there not dealt with -- Whether just and right that appeal should proceed "by reason of special circumstances" -- Immigration Appeals (Procedure) Rules 1972 (SI 1972 No. 1684), RR 4(5), 11(4), 12(e).

Held:

The appellant had applied for a variation of her conditions of entry. The application had been refused and a letter notifying her of the refusal was sent in compliance with the Immigration Appeals (Notices) Regulations to her last known address n1. She appealed against the refusal but her notice of appeal was some two weeks out of time under r 4(5) of the 1972 Rules. n2 The preliminary issue before the adjudicator under r 11(4) was whether he should allow the appeal to proceed "by reason of special circumstances" which made it "just and right so to do" n3. The appellant gave as her reason for the delay in serving her notice of appeal the fact that she did not know about the notice refusing her application, because she had not made any arrangement for her correspondence to be dealt with during a period when she was away from the home of relatives to which the notice of refusal was properly sent. The adjudicator did not consider that this explanation constituted "special circumstances" under r 11(4) or that the matters put forward by the appellant warranted a hearing. He dismissed her appeal under r 12(e) of the 1972 Procedure Rules n4. On the appellant's application to the Tribunal for leave to appeal from this decision, n1 S.I. 1972 No. 1683. n2 Rule 4(5) is set out in footnote 5, post. n3 Rule 11(4) is set out in footnote 5, post. n4 Rule 12(e) is set out in footnote 6, post. Held: (the President, refusing leave to appeal and affirming the adjudicator's decision), the appellant's departure from her last known address without making adequate arrangements for her correspondence to be dealt with did not provide adequate grounds for allowing her appeal to proceed under r 11(4) of the Procedure Rules 1972 "by reason of special circumstances". PANEL: Sir Derek Hilton (President).

Judgment One:

THE TRIBUNAL: On 8 January 1973 the appellant Mrs Satwant Sokhey, a citizen of India, was sent notice of the refusal of the respondent to vary her conditions of admission to enable her to remain permanently in this country. The respondent's notice was posted to the address in Northumberland where the appellant had been residing with members of her family. On 7 February 1973 the appellant sent by post notice of appeal against this decision; the notice was received by the Under Secretary of State at the Home Office on 8 February. On 10 April 1973 the Chief Adjudicator (Mr J. Bennett) considered as a preliminary issue a submission by the respondent that the notice of appeal was out of time (Rules 4(5) and 11(4) of the Immigration Appeals (Procedure) Rules 1972 (SI 1972 No 7684) refer) n5. He had before him representations in writing made on behalf of the appellant. The Chief Adjudicator dismissed the appeal, concluding his determination as follows: -- n5 Rule 4(5) under the heading 'Time limit for appealing' reads: "(5) Notice of appeal under section 14(1) of the Act [the Immigration Act 1971] by a person who has a limited leave to enter or remain in the United Kingdom, against any variation of the leave or refusal to vary it, may be given not later than 14 days after the variation or refusal to vary." Rule 11(4) under the heading 'Determination of preliminary issues', reads: "(4) Where the respondent to an appeal makes such an allegation as is mentioned in Rule 8(3)(b) [namely, that the notice of appeal was not given within the period permitted by Rule 4] and the appellate authority determines, as a preliminary issue, that the notice of appeal was not given within the period permitted by Rule 4, then, except where a deportation order is for the time being in force in respect of the appellant, the appellate authority shall not be required to dismiss the appeal but may allow it to proceed if the authority is of the opinion that, by reason of special circumstances, it is just and right so to do; and, in such case, the notice of appeal shall be treated for all purposes as if it had been given in accordance with Rule 4." "In accordance with rule 11(4) the matter was dealt with as a preliminary issue and the appellant was afforded a reasonable opportunity to submit a statement in writing of matters put forward in rebuttal of the respondent's allegation. In that statement the appellant gives as the reason for the delay in serving the notice of appeal the fact that she was in London at the time when the letter containing the notice of refusal to vary conditions arrived and she thus did not see it until her return from London. The letter apparently was properly address to her and it was therefore her responsibility to ensure that she would receive such a communication in good time. I am unable to find that in this case there are special circumstances which would permit me to hold that the notice of appeal should be treated for all purposes as if it had been given in accordance with r 4(5); further I am of the opinion that the matters put forward by the appellant do not warrant a hearing. The appeal is accordingly dismissed in accordance with the provisions of rule 12(e)." n6 n6 Rule 12 of the Immigration Appeals (Procedure) Rules 1972, under the heading 'Determination of appeal without hearing', reads: "12(e) An appellate authority may determine an appeal without a hearing if --... (e) such a preliminary issue as is referred to in Rule 11 arises and the appellate authority has afforded the appellant a reasonable opportunity to submita statement in writing of matters put forward in rebuttal of the respondent's allegation, and -- (i) the appellant has not submitted such a statement, or (ii) the appellate authority is of the opinion that matters put forward by the appellant in such a statement do not warrant a hearing." The appellant has applied for leave to appeal to the Tribunal on the following grounds: -- "(a) failure to take cognizance of the prejudice to the appellant by the decision; (b) lack of opportunity to the appellant to be heard in reply to the decision of the 8th January, 1973." It was incumbent on the appellant to comply with the Immigration Appeals (Procedure) Rules 1972 if she wished to appeal against the respondent's decision. Her action in leaving her last known address without making adequate arrangements for her correspondence to be dealt with does not in the opinion of the Tribunal provide adequate grounds for allowing her appeal to proceed under r 11(4) of the Rules "by reason of special circumstances". The Tribunal agrees with the determination of the Chief Adjudicator, and leave to appeal to the Tribunal is refused.

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