Saleh v. Secretary of State for the Home Department

SALEH v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/1545/74(407)

Immigration Appeal Tribunal

[1975] Imm AR 154

Hearing Date: 17 January 1975

17 January 1975

Index Terms:

Appeal -- Withdrawal of appeal -- Application to withdraw made at outset of proceedings before adjudicator -- Whether a right to withdraw at that stage -- Immigration Appeals (Procedure) Rules 1972.

Held:

The Immigration Appeals (Procedure) Rules 1972 provide in r 6(5)(a) that after a notice of appeal has been given to the appropriate officer in accordance with the Rules a written notice of withdrawal of the appeal may be given by the appellant to that officer. The appellant in the instant case had not given such a notice of withdrawal, but when the parties' representatives assembled for the hearing of the appeal before the adjudicator the appellant's representative at the outset of the proceedings applied to withdraw the appeal. The adjudicator refused the application, ruling that he had a discretion to do so, the proceedings before him 'having started'; the appellant's representative took no further part in the hearing, and the adjudicator after receiving from the respondent's representative an amplification of the explanatory statement (prepared under r 6(5)(a)) dismissed the appeal on its merits. On an appeal to the Tribunal on the preliminary issue the question for decision was whether the adjudicator had a discretion to refuse the appellant's application. The Tribunal found that the appeal had not started before the adjudicator because the appellant's representative applied to withdraw the appeal before any evidence, submissions, or arguments in support of the appeal had been uttered, and held that the appellant's application to withdraw should have been granted, because there was no reason why an appellant who had a right of appeal by law should not also have the right to withdraw his appeal unless this was expressly prevented by statute. Per curiam: We have not considered up to what time an appeal can be withdrawn and do no more than note that LORD GODDARD, C.J., thought that an application could be withdrawn up to any time before the Tribunal gave its decision (R v Hampstead & St Pancras Rent Tribunal, ex p Goodman, [1951] 1 All E.R. 170, at p 172). Boal Quay Wharfingers Ltd v King's Lynn Conservancy Board ([1971] 3 All E.R. 597), also considered.

Counsel:

M. Hussain of the United Kingdom Immigrants Advisory Service, for the appellant. R. W. B. Hurley for the respondent.

PANEL:

P.N. Dalton Esq (Vice-President), R. S. Charnley Esq, Dr L. P. De Souza.

Judgment One:

THE TRIBUNAL: The appellant Mohamed Abdo Saleh, a citizen of Yemen, arrived at London Airport on 5 June 1970 in possession of a work permit issued by the Department of Employment for employment as a cook at the Bengal Tiger Restaurant, Stocksbridge. He was granted leave to land for 12 months on condition that he did not enter employment without the consent of the Secretary for Employment and did not engage in any business or profession without the consent of the Secretary of State for the Home Department. On 21 August 1970 the Home Office was informed that on 20 July 1970 the appellant had taken employment with Edgar Allen Foundry Ltd, Sheffield. This was in contravention of the appellant's landing conditions. However before action to curtail Mr Saleh's permitted stay was finalised he called at the Home Office on 21 May 1971 with his employer Mr Satish Shaha, who confirmed that he wished to continue to employ the appellant at the Bengal Tiger Restaurant. The appellant was granted an extension of stay until 5 June 1972. On 24 August 1971 the Manchester Police informed the Home Office that the appellant had been interviewed about has employment and had said that he was no longer working for Mr Satish Shaha but that, having received @ 300 from an uncle for investment in a cafe, was now in joint partnership with another Arab national who owned the Chef's Pantry cafe in Eccles. The appellant was again interviewed and the Home Office was informed on 10 February 1972 that the appellant had said that he was no longer following any employment. On 20 May 1972 the appellant asked the Home Office for an extension of his permitted stay. The appellant was requested to submit an offer of employment to the Home Office, and on 1 September 1972 a letter was received from Victor Blagden (Manchester) Ltd, confirming that they employed the appellant as a labourer at their factory. The application was referred to the Department of Employment, who were not prepared to approve the employment and so the application was refused. The appellant appealed against this refusal on the grounds that he wished to take employment as a cook with Mr Said el Gardi at his restaurant in Attercliffe Road, Sheffield. Police enquiries revealed that the address in Attercliffe Road was that of a very run-down cafe in a redevelopment area of Sheffield, the majority of houses in the vicinity having been demodished. The Home Office consulted the Department of Employment, who were unable to approve Mr Saleh's employment with Mr Said of Gardi. The application was therefore refused on 10 August 1973, and in view of the appellant's completely unsatisfactory employment record since his arrival in the United Kingdom in June 1970 the Secretary of State decided that the appellant could no longer remain in the United Kingdom for the purpose of seeking employment (Paras 4 and 17 of HC 82 refer). The appellant appealed to an adjudicator, Mr F. V. Renshaw, and the appeal came on for hearing on 24 September 1974, Mr M. Hussain appeared for the appellant and Mr W. Conn appeared for the respondent. The record of proceedings starts as follows: -- "Adjudicator: Two decisions under appeal in this case -- how do you say I should deal with them? Together? Mr Hussain: It doesn't matter -- together -- the second decision supersedes the first and all facts are the same -- but in any event I wish to make an application to withdraw. Adjudicator: Before I consider that I shall want your authority and I will have to consider the matter. I would first like to know why you left it until case had started. Why didn't you let Office know heforehand?" Mr Hussain tendered an explanation and Mr Conn made an observation, which are recorded, and then the record continues in the following manner: -- "Mr Hussain: This is a preliminary issue. If decided against me shall appeal to Tribunal on whether an appeal can be withdrawn or not. Adjudicator: Authorities? Mr Hussain: Simply that an appellant may withdraw his appeal at any time. Adjudicator: Having started, I have a discretion and I am ruling against you -- and that appeal must proceed. Mr Hussain indicated taking no further part in proceedings." The adjudicator, having heard Mr Conn's amplification of the explanatory statement, gave his determination dismissing the appellant's appeal. [The Tribunal then noted that the appellant's representative asked for leave to appeal against the adjudicator's ruling, submitting that it was the inherent right of any appellant to withdraw his appeal at any time, and that an adjudicator had no discretion in the matter of withdrawal. After stating that the adjudicator granted leave to appeal, the Tribunal continued: --] Mr Hussain informed the Tribunal that there were two appeals before the adjudicator and that he intended to withdraw both. He said that the question before the Tribunal, and on which there is no Tribunal decision, is whether an adjudicator can refuse an appellant the right to withdraw his appeal. He added that he was no arguing the merits of the appellant's conduct. Mr Hussain referred to r 6(5)(a) and (6) of the Immigration Appeals (Procedure) Rules, 1972 in which provision is made for an appellant to give written notice of the withdrawal of his appeal or, in certain circumstances, to say whether he wishes to pursue the appeal. Two cases were then cited. The first case is R v Hampstead and St Pancras Rent Tribunal exp Goodman n1. In that case counsel for the landlord moved for an order addressed to the Rent Tribunal to prohibit them from further considering an application by the tenant. In the course of his judgment LORD GODDARD, C.J., said ([1951] 1 All E.R. at p. 172): -- n1 [1951] 1 All E.R. 170; [1951] 1 KB 541.

"It seems to me that, in the absence of strong words in the section to the contrary a Tribunal only has jurisdiction so long as an application subsists. In my view, an applicant may withdraw his application at any time. So, if the parties to an application choose to withdraw it by consent, the Tribunal is not under any duty to and indeed, cannot -- proceed with the hearing... One other point has been mentioned by the Attorney-General on which he says it is desirable that we should give a decision, and that is: Up to what time can an application be withdrawn? This does not strictly arise in this case, but for my part I think it can be withdrawn up to any time before the Tribunal gives its decision."

The other case is that of Boal Quay Wharfingers Ltd v King's Lynn Conserancy Board. n2 In his judgment SALMON, L.J., said ([1971] 3 All E.R. at p 604): -- n2 [1971] 3 All E.R. 597; [1971] 1 W.L.R. 1563.

"The Act (Docks and Harbours Act 1966) by s 1 prohibits any person from employing labour in any dock in the port save under licence. But no one is obliged to apply for a licence. As LORD DENNING, M.R., has pointed out, an employer in applying for a licence is asking in a sense for a favour to be extended to him. If one applies for a licence, I cannot for my part see why one is not entitled to withdraw one's application, unless, of course, there is any section in this Act which would prevent one from doing so. Whenever an application is made to a tribunal or to the courts for that matter, as a rule, there is nothing to compel one to go on with it. One is entitled to withdraw one's application at any stage."

Mr Hurley told the Tribunal that he did not demur from the proposition that an appellant can withdraw his appeal before the hearing, but he submitted that the adjudicator in this case was acting within his jurisdiction and had discretion to decide to allow or not to allow the withdrawal of the appeal. This discretion, he argued, came under r 37(e) of the 1972 Procedure Rules which provides: --

"An appellate authority may subject to the provisions of the Act and of these Rules, regulate its own procedure."

Mr Hurley also submitted that the two cases quoted could be distinguished, since they concerned applications and not appeals. If an applicant, that is a person who legally has the right to make an application to a Tribunal or to a court, also has the right to withdraw his application we can see no reason why an appellant who has a right of appeal by law should not also have the right to withdraw his appeal, unless, of course, expressly prevented by statute. The Rules provide for a withdrawal of an appeal and we have no doubt that an appellant or his representative if so instructed, may, before the hearing of the appeal, withdraw the appeal. This is what happened before the adjudicator. Before Mr Hussain opened the appeal on behalf of the appellant he told the adjudicator he wished to make an application to withdraw. The adjudicator held that the appeal having started he had a discretion and the appeal must proceed but, with respect, the appeal had not started. The parties' representatives had assembled before the adjudicator, and before any evidence, submissions or argument in support of the appeal had been uttered Mr Hussain applied to withdraw. In our view Mr Hussain's application should not have been refused but granted. We have not considered up to what time an appeal can be withdrawn and do no more than note that LORD GODDARD (in the case cited earlier) thought that an application could be withdrawn up to any time before the Tribunal gives its decision. The appeal is allowed and we direct under s 19(3) of the Immigration Act 1971 that the appeals by the appellant Mohamed Abdo Saleh be marked with-drawn by the appropriate officer.

DISPOSITION:

Appeal allowed.