Secretary of State for the Home Department v. Omishore
- Author: Immigration Appeal Tribunal
- Document source:
-
Date:
17 August 1990
SECRETARY OF STATE FOR THE HOME DEPARTMENT v OMISHORE
IMMIGRATION APPEAL TRIBUNAL
[1990] Imm AR 582
Hearing Date: 17 August 1990
17 August 1990
Index Terms:
Removal directions -- on deportation -- appeal against destination specified in removal directions -- whether to ground such an appeal an appellant had to specify another country that would accept him. Immigration Act 1971 ss 17, 22: Immigration Appeals (Procedure) Rules 1984 rr 4(1), 6(3), 8(3), 9, 11(1), 12.
Appeal -- against destination specified in removal directions -- assertion by Secretary of State that there was no valid appeal because no alternative destination put forward by appellant -- whether that should be determined as a preliminary issue. Immigration Appeals (Procedure) Rules 1984 r 8(3).
Immigration Appeal Tribunal -- jurisdiction -- whether an appeal would lie to the Tribunal against an adjudicator's decision that there was or was not an appeal before him -- the relevance of ex parte Lila -- the distinction between "a determination thereon" and "a determination therein." Immigration Act, 1971 ss 19(1), 20(1).
Held:
The appellant was an overstayer who had gone to ground. In consequence, when the Secretary of State decided to initiate deportation proceedings against him, the appellant remained unaware of that decision. In the fullness of time a deportation order was signed. When the appellant subsequently became aware of that order, he appealed. His appeal could then only be against the removal directions, in this case to Nigeria. He did not specify any other country that would receive him. The Secretary of State contended before the Chief Adjudicator that there was no valid appeal because the appellant had not complied with the statutory requirement, in a destination appeal, for the appellant to specify an alternative destination. The Secretary of State submitted that that question should be determined as a preliminary issue (with for example, the explanatory statement being limited to that question). In the light of conflicting determinations by the Tribunal, the Chief Adjudicator ruled that he should hear the case on its merits. He did so and dismissed the appeal. The Secretary of State appealed to the Tribunal maintaining that the issue should have been determined as a preliminary issue. The Tribunal reviewed ancillary matters. Held: 1. In an appeal under section 17(1)(b) of the 1971 Act, (a destination appeal) the appellant had to specify another country to which he should be removed. 2. If an appellant did not specify another country in his notice of appeal, the Secretary of State might challenge the validity of that appeal and that should be determined as a preliminary issue. 3. A determination by an adjudicator on a preliminary issue was a determination within section 20(1) of the 1971 Act and therefore might be appealed to the Tribunal: the distinction in ex parte Lila between "a determination thereon" and "a determination therein" applied. 4. A decision by an adjudicator that he had no jurisdiction to hear an appeal was likewise appealable to the Tribunal.Cases referred to in the Judgment:
R v Immigration Appeal Tribunal ex parte Lila [1978] Imm AR 50. Marspan Tusin v Secretary of State for the Home Department [1984] Imm AR 42. Joseph Agyekum v Secretary of State for the Home Department [1987] Imm AR 23. Secretary of State for the Home Department v Said Ken'aan [1990] Imm AR 544. Mensah (unreported, 20 September 1976). Sabri (2645) (unreported). Movahendian (4683) (unreported). Boakye (4783) (unreported). Kamal (9648) (unreported).Counsel:
D Wilmott for the appellant; The respondent did not appear and was not represented PANEL: Professor DC Jackson (Vice-President), GW Farmer Esq (Vice-President), AA Lloyd Esq JPJudgment One:
IMMIGRATION APPEAL TRIBUNAL: The central issue in this appeal is whether an appeal against directions for removal following the making of a deportation order has as a prerequisite the specification of a different country to that which is notified to the appellant in the directions. There are two further connected issues -- first, whether if the specification of a country by an appellant is a prerequisite, the matter may be treated as a "preliminary issue" and, secondly, whether an appeal will lie to the Tribunal from an adjudicator's decision that there is or is not an appeal before him. The proceedings to date It appears that the appellant was admitted to the United Kingdom on 29 March 1977 for 7 days as a visitor and after the expiry of that 7 days, he remained without leave. On some unspecified date, the Secretary of State decided to make a deportation order against the respondent but at that time the Secretary of State did not know the respondent's whereabouts or place of abode. Because of this lack of knowledge there was no obligation on the Secretary of State to serve notice of the decision on the respondent (Immigration Appeals (Notices) Regulations 1984 reg 3(4)). One 25 January 1983 a deportation order was made in respect of the respondent and direction was given for removal to Nigeria. Notice was served on 4 May 1989. On 8 May a notice of appeal was lodged naming the Southwark African Organisation as the respondent's representative. That notice of appeal listed 9 grounds of appeal, but none go to the country to which the appellant should be removed. Further there was no indication either on the form or through any written statement of an objection to the removal to Nigeria -- although the form provides for such an objection to be stated. In the circumstances appeal was open to Mr Omishore only against the directions. The Home Office lodged an explanatory statement under rule 8 (3)(a)(1) of the Immigration Appeals (Procedure) Rules 1984, asserting as a preliminary issue that the then appellant was not entitled to appeal even against the directions. The explanatory statement concluded: "The Secretary of State respectfully submits that as the appellant's appeal to the Adjudicator is by virtue of Section 17(1)(b) of the Immigration Act 1971, for an appeal under that provision to be properly laid, the appellant must specify a country different from that to which it is proposed to remove him. (The provisions of Rules 9(2) and 12(d) of the Immigration Appeals (Procedure) Rules 1984 refer.) As the appellant has failed to provide any alternative country to Nigeria to which he could be removed, the Secretary of State further submits that no valid appeal has been lodged, and the appellate authority therefore has no appeal before it." The Chief Adjudicator promulgated his decision on the preliminary issue in January 1990. The Chief Adjudicator, having examined decisions of the Tribunal, concluded that these were in conflict and that in those circumstances he held that he should give Mr Omishore the benefit of the uncertainty. The Chief Adjudicator therefore directed that the appeal should proceed to a hearing with the lodging of the explanatory statement relating to the question of removal. The Chief Adjudicator indicated that in his view an appeal to the Tribunal against his decision could be sought only after the determination of the merits of the appeal against directions. The matter was finally disposed of by the Chief Adjudicator through a determination promulgated on 21 May 1990. In that determination the Chief Adjudicator held that since the appellant had been unable to specify an alternative country of destination, the appeal should be dismissed. The presenting officer applied for leave to appeal against the Chief Adjudicator's decision on the preliminary issue and that leave was granted. No application was made by Mr Omishore for leave to appeal and none has been received by the Tribunal. As the Tribunal was satisfied that the Southwark African Organisation, Mr Omishore's representatives, had been notified of the time and place of the hearing, the Tribunal therefore decided to hear the appeal in the absence of Mr Omishore, pursuant to the Immigration Appeals (Procedure) Rules 1984 rule 34(2). However, with Mr Wilmott's agreement, subsequent to the hearing the Tribunal wrote to the Southwark African Organisation stating that it would consider any representations made before 10 July 1990. No representations have been received. The applicable law The right of appeal against removal directions following the making of a deportation order is provided by section 17 of the Immigration Act 1971. The provision relevant to the present case is that set out in section 17(1)(b). This reads: "(1) Subject to the provisions of the Part of this Act, where directions are given under this Act for a person's removal from the United Kingdom either (a) . . . (b) on a deportation order being made against him (c) . . . he may appeal to an adjudicator against the directions on the ground that he ought to be removed (if at all) to a different country or territory specified by him." Section 17(3) provides for the circumstances where a person has a right of appeal against the decision to make a deportation order as well as the right of appeal against proposed directions. That provision reads: "(3) Where a person appeals under section 15 above against a decision to make a deportation order against him, and before or after he does so the Secretary of State serves on him notice that any directions which may be given for his removal by virtue of the deportation order will be for his removal to a country or territory or one of several countries or territories specified in the notice, then he may on that appeal object to the country or territory specified in the notice (or to one or more of those specified), and claim that he ought to be removed (if at all) to a different country or territory specified by him." The Immigration Appeals (Procedure) Rules 1984 are made under the authority of section 22 of the Immigration Act 1971. Section 22(1) reads: "(1) The Secretary of State may make rules (in this Act referred to as "rules of procedure")-- (a) for regulating the exercise of the rights of appeal conferred by this Part of this Act; (b) for prescribing the practice and procedure to be followed on or in connection with appeals thereunder, including the mode and burden of proof and admissibility of evidence on such an appeal; and (c) for other matters preliminary or incidental to or arising out of such appeals, including proof of the decisions of Adjudicators or the Appeal Tribunal." The rules relevant to an appeal against the removal of directions can be found in the Procedure Rules, rules 4(10), 6(3), 9 and 12(d). Rule 12(d) gives authority for determining an appeal without a hearing in cases of appeals against removal directions. Rule 4(10) reads: "Notice of appeal under section 17(1) of the Act by a person for whose removal from the United Kingdom directions have been given, on the ground that he ought to be removed (if at all) to a different country or territory specified by him, may be given -- (a) where the directions have been given on his being refused leave to enter the United Kingdom, at any time before the departure of the ship or aircraft in which he is to be removed from the United Kingdom; (b) in any other case, before such departure but not later than 14 days after the giving of the directions." Rule 6(1) provides for a notice of appeal which is to contain particulars specified in rule 6(3). Rule 6(3) reads: "The particulars referred to in paragraph (1) above shall consist of -- (a) the full name, address, date of birth and nationality or citizenship of the appellant; (b) particulars of the decision or action to which the notice relates; and (c) the grounds of appeal on which the appellant intends to rely. Without prejudice to paragraph (c) above, where the notice of appeal relates to a right of appeal under section 17 of the Act, the notice shall include a statement which specifies the reasons why the appellant objects to removal to the country or territory specified by the respondent, identifies the country or territory to which the appellant claims he ought to be removed (if at all) and refers to evidence which demonstrates or tends to show that the country or territory so identified would admit the appellant if he were to be removed there." Rule 9(1) reads: "This rule shall apply where an appellant objects to removal to a particular country or territory and claims that he ought to be removed (if at all) to a different country or territory-- (a) on appeal under section 17(1) of the Act; or (b) by virtue of section 17(2) of the Act, on appeal under section 13(1) thereof; or (c) by virtue of section 17(3) of the Act, on appeal under section 15 thereof. (2) The appellant shall submit with his notice of appeal a statement in writing of the matters put forward in support of his objection and claim." Also relevant are rule 8(3) (relied on by the Secretary of State in this case) and rule 11(1). The effect of these rules in the context of the present case is that where the Secretary of State asserts that Mr Omishore was not entitled to an appeal "by virtue of the provision of the Act specified" by the Secretary of State, then if the Secretary of State should so request, the appellate authority must determine the validity of that assertion as a preliminary issue. In these circumstances the explanatory statement may be limited to facts relevant to that assertion. A general important practical aspect of this case is whether it is open to the Secretary of State to treat an appeal against removal directions as a preliminary issue, if an alternative country is not specified and to lodge an explanatory statement limited to that issue only. The right of appeal and the need to specify a country The Chief Adjudicator referred to three Tribunal decisions -- Movahedian (4683), Boakye (4783) and Agyekum [1987] Imm AR 23. The decisions of Movahedian and Boakye concerned rulings by the Chief Adjudicator on the matter presently before us. In both cases, the Chief Adjudicator ruled that there was no appeal before him when in a directions appeal, the appellant failed to identify an alternative country of destination. The Chief Adjudicator was of the view that this was a mandatory requirement of rule 6(3) of the Procedure Rules and the failure to comply with this rule rendered the appeal invalid. In Movahedian and Boakye the Tribunal took the view: (1) That the Chief Adjudicator had erred in finding that he had no jurisdiction for that jurisdiction was rooted in section 17(1) of the Immigration Act 1971. (2) The decision in each case was not appealable to the Tribunal for the Chief Adjudicator had neither allowed nor dismissed the appeal. In Agyekum the Tribunal held that as section 17(1) provided for an appeal where directions were given for a person's removal "on the ground that he ought to be removed (if at all) to a different country or territory specified by him" there was no appeal unless a country or territory was so specified. When that view is compared with Boakye and Movahedian therefore, it will be seen that the decisions are consistent in holding that whether or not there is a right of appeal, depends not on the Procedure Rules but on the wording of the statute. It seems to us with respect that in Movahedian and Boakye the Tribunal did not go on to consider the effect of the wording of the statute, but was content simply to make the point that the right of appeal depended on the statute. When the wording of section 17(1) is taken into account it seems to us as it seemed to the Tribunal in Agyekum that the appeal may be brought only on a particular ground and that ground requires a specification of a country. The failure so to specify therefore means that the appeal has no foundation. The potential appellant has not brought his case within the statutory provision defining his right of appeal. We should stress that in so deciding we focus only on section 17(1). Mr Wilmott drew our attention to Kamal (6498) in which the question of the jurisdiction of the appellate authorities under section 17(3) was considered but not decided. In Kamal the Tribunal thought that there may well be a distinction between section 17(1) and section 17(3). Section 17(3) provides that a person who appeals under section 15 may "on that appeal" object to the country or territory specified in a notice of directions for removal. It is therefore arguable that that objection may be taken at any time during the appeal proceedings. We only add that this distinction is not simply linguistic in that the appeal under section 15 is at a relatively early stage in deportation proceedings and is concerned with proposed directions. The decision to make a deportation by virtue of section 17(1) is after the deportation order has been made and it is defensible therefore to provide an appeal against removal directions only if there is an alternative country, as it were "in the frame". This leaves two further points -- first, whether the "preliminary issue procedure" provided for in the Procedure Rules will apply, and secondly, whether an appeal will lie from a decision of an adjudicator and he has or has not an appeal before him. Section 17(1) and the preliminary issue procedure Mr Wilmott cited to us the two decisions of the Tribunal taken in 1976 -- Mensah (unnumbered) and Sabri (2645). In both these decisions the Tribunal expressed the view that where there was no right of appeal under section 14(1) of the Act, rule 8(3)(a)(1) of the Procedure Rules had no application. That rule applied, said the Tribunal, only where the statute provided that no right of appeal would lie -- not where rights of appeal were simply set out. In Mensah the Tribunal held therefore that the adjudicator had erred in purporting to exercise a preliminary issue jurisdiction. In Sabri the Tribunal held that the Home Office had not failed to comply with rule 8(3)(a)(1) where the Home Office case was that there was no right of appeal under the Act. A similar issue arose in a slightly different context in the recent Tribunal decision in Ken'aan (7241). In that case the issue was whether there was a pending appeal when the Secretary of State had declared that there was no right of appeal. Mr Wilmott, who also appeared in that case, relied on rule 8(3) of the Procedure Rules and the decisions in Mensah and Sabri to support his argument that there was no pending appeal before the Tribunal. The contention was that there was no provision in the Procedure Rules for consideration of the issue as to whether or not there was an appeal once the Secretary of State had declared there was not. In Ken'aan the Tribunal stressed that the Procedure Rules could not override the Immigration Act and held that under the Act it was not for the Secretary of State to decide whether there was an appeal but for the appellate authorities. In considering Mr Wilmott's argument on the scope of the Procedure Rules, the Tribunal disagreed with the decision in Mensah and the like view expressed in Sabri saying that "it would be strange if the rules referred only to the removal of a right of appeal when that question may well depend on whether there is such a right in the first place". In Ken'aan it was not necessary to decide the ambit of the Procedure Rules for the case turned on the direct application of the Immigration Act 1971. Similarly, in this case, whether or not it falls within the "preliminary issue" rules does not affect our decision on the primary point, ie, that to found an appeal in the section 17(1) an appellant must specify an alternative country. It is however, important to decide whether the preliminary issue procedure applies to a case such as the present so that the Secretary of State can follow the correct procedure and the appellate authorities approach it in the right context. We agree with the view expressed in Ken'aan that the preliminary issue procedure applies in a case in which the Secretary of State is asserting that having regard to the relevant provisions of the statute, an applicant has no right of appeal. We see no difference in substance between an assertion (for example) that an appellant has no right of appeal because his application for variation was not made while he had current leave, and an assertion that he has no right of appeal in this country because he had no current entry clearance. It is simply a matter of style in the Act as to whether the limitation on a right of appeal is expressed as a prerequisite or a qualification. We cannot believe that the Procedure Rules intended this type of distinction and we would not so cnstrue the rules unless the wording led us necessarily to it. In our view the wording is not of that nature. Will an appeal lie to the Tribunal? The relevant statutory provisions are to be found in section 19(1) and section 20(1) of the Immigration Act 1971. Section 20(1) provides that a party to an appeal to an adjudicator may "if dissatisfied with his determination thereon" appeal to the Tribunal. Section 19(1) does not in terms refer to a "determination" but sets out the duty of the adjudicator in hearing an appeal. It reads: "19(1). Subject to sections 13(4) and 16(4) above, and to any restriction on the grounds of appeal, an adjudicator on an appeal to him under this Part of the Act -- (a) shall allow the appeal if he considers -- (i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently; and (b) in any other case, shall dismiss the appeal." In R v IAT ex parte Lila [1978] Imm AR 50 the Divisional Court held that the words "determination thereon" appearing in section 20 clearly referred "to the determination or decision of the adjudicator on the appeal either allowing it or dismissing it under section 19 and not to an incidental or interlocutory decision arising in the course of an appeal." The court added "the words of section 20(1) are "his determination thereon", not "a determination therein"". The court also commented that the provision in the Procedure Rules for the determination of preliminary issues was not inconsistent with its interpretation of section 20(1). The matter at issue in Lila was the ability to appeal against a ruling on admissibility of evidence. In our view, the decision of Lila is clearly concerned with matters which arise in the course of the appellate proceeding. The stress throughout the case is on the distinction between interlocutory decisions and decisions which have finality. That is underlined by the court's reference to the preliminary issue procedure and the disposition of the appeal through it. It seems to us to follow that if we are right that the preliminary issue procedure applies to an assertion by the Secretary of State, that no appeal will lie, then any decision on that issue will be appealable. In effect, the preliminary issue becomes the matter about which there is an appeal and the adjudicator either allows or dismisses the appeal on that issue. Questions of jurisdiction arise during the course of proceedings when the preliminary issue procedure has not been used or possibly when it does not apply. In our view, any decision by an adjudicator that he lacks jurisdiction is a determination from which an appeal can be brought. It shuts the door on the appellant with just as much a finality as when the appellant has had his say and the appeal has been dismissed. In respect of the matter before the adjudicator it is a "determination thereon" rather than "therein". (See also Tusin [1984] Imm AR 42). We do not see any difficulty in this construction in the wording of section 19(1). Lacking any express prohibition it would seem clear that the appellate authorities have the power to construe the Immigration Act 1971 to decide matters going to their own jurisdiction. Any other approach would simply be impracticable. The wording of section 19(1) seems to us to contemplate that there may be a decision on whether an appeal will lie because of the qualifying phrase referring to restrictions on grounds of appeal. Even if that were not so, we would not read the phrase "dismiss the appeal" in a technical way so as to exclude a decision that in the circumstances there was no appeal available. In the cases of Movahedian and Boakye the Chief Adjudicator had declared that there was no valid appeal before him requiring determination. In considering an appeal from that decision, the Tribunal commented that the Chief Adjudicator had not allowed or dismissed the appeal and there was therefore no determination "on the appeal". We respectfully disagree with the approach of the Tribunal in both these cases. In our view, however the Chief Adjudicator expressed it, he was either declaring that there was a restriction on the grounds of appeal (and hence giving a determination on that point) or was dismissing the appeal within the meaning of section 19(1). There was therefore, in both cases, a determiantion from which the appeal could be and was brought. This leaves only the question whether, as occurred in the present case, a decision by an adjudicator that an appeal does lie before him is appealable. In this case the Chief Adjudicator's decision that the appeal did lie was given on a preliminary issue. If it were right to apply preliminary issue procedure (and we have held that it was) as we have said, Lila has no application. The preliminary issue procedure stands on its own and calls for a determination on that issue which itself stands on its own. If the preliminary issue procedure has not been applied the matter is more arguable. It is arguable that a decision that an appeal will lie is in respect of those proceedings a determination "therein" and not "thereon" Ex hypothesi the matter is not one of finality. However, we do think there is a substantive distinction between such a decision and a decision on a matter whih arises during the proceedings themselves. For ourselves we tend to think that such a decision was of itself appealable going as it would to the applicability of the Immigration Act or to any restriction of grounds of appeal under that Act. It may well be in any given case it would be preferable for any jurisdictional issue to be settled before (perhaps in the end without need or basis) plunging into the merits. However, as we have held that in this case, the preliminary issue procedure was properly applied, we have no need to express a final opinion on the appealability of a decision in favour of jurisdiction falling outside that procedure. In sum, therefore, we are of the view that: 1 For an appeal to lie under section 17(1)(b) of the Immigration Act 1971 an appellant must specify a country or territory to which he ought to be removed. 2 It is open to the Secretary of State to challenge the existence of an appeal under section 17(1)(b) on the ground that no country is specified, through the preliminary issue of the Procedure Rules. 3 Any decision by an adjudicator on a preliminary issue that an appeal will or will not lie is a determination within section 20(1) and is therefore a foundation for seeking leave to appeal to the Tribunal. 4 Any decision of an adjudicator outside the preliminary issue procedure that he lacks jurisdiction is a determination within section 20(1). 5 It may be that when a jurisdictional issue is raised before an adjudicator outside the preliminary issue procedure and he decides that there is jurisdiction, that that of itself is a determination within section 20(1). In our view, the Chief Adjudicator erred in directing that the appeal should proceed to a full hearing. On that point the Secretary of State's appeal is allowed. On the substantive point in the case, our holding simply means that Mr Omishore's appeal should have been dismissed at an earlier stage than the point at which it was dismissed. We therefore affirm the dismissal of the appeal by Mr Omishore against directions for his removal to Nigeria.DISPOSITION:
Appeal allowedDisclaimer: Crown Copyright
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