Secretary of State for the Home Department v. Ken'aan

SECRETARY OF STATE FOR THE HOME DEPARTMENT v KEN'AAN

IMMIGRATION APPEAL TRIBUNAL

[1990] Imm AR 544

Hearing Date: 31 July 1990

31 July 1990

Index Terms:

Deportation -- overstayer -- whether on the facts the Secretary of State had power in law to make a deportation order -- whether at the date of that decision the respondent had "a pending appeal" -- whether "a pending appeal" would make a decision by the Secretary of State to make a deportation order unlawful. Immigration Act 1971 ss 3(3), 3(5)(a), 15(1) 33(4). Immigration Act 1988 s 5(1): Variation of Leave Order, 1976 (as amended 1989): Immigration Appeals (Procedure) Rules 1984 rr 4, 5.

Rights of appeal -- refusal of variation of leave -- failure of respondent to serve in time a notice of appeal -- whether Secretary of State had power to declare that an applicant had no right of appeal, that that right had been forfeited -- whether such a declaration was reviewable by the immigration appellate authorities. Immigration Act 1971 ss 14(1), 33(4): Immigration Appeals (Procedure) Rules 1984 rr 5(1), 6, 8(3), 11(1)(2).

Held:

The Secretary of State appealed against the determination of an adjudicator in which he had allowed the respondent's appeal against the intention to deport her as an overstayer. She had been refused a variation of leave as a student: the notice was properly sent, but she did not receive it. The Secretary of State had indicated that because she had not submitted a notice of appeal within the prescribed period she had "forfeited . . . [her] . . . right of appeal." When the case came before the adjudicator he concluded that the Secretary of State had no power to declare that an applicant had "forfeited" a right of appeal. He also concluded that whether or not the late appeal should proceed was a matter for an adjudicator: the procedure laid down in the rules had not been followed, no adjudicator had determined the preliminary issue whether or not the late appeal should go to a hearing on the merits of the substantive case. He accordingly held that the respondent before the Tribunal had an appeal pending and it followed that the Secretary of State had no power to make a deportation order. He allowed the appeal. The Secretary of State appealed. On his behalf it was argued that under the Act the Secretary of State had authority to decide whether a person had a right of appeal. It was further argued, following the authorities, that at the date of decision the respondent had no appeal pending against the refusal to vary her leave to remain in the United Kingdom. Held: 1. The Secretary of State had no power to declare that a person had no right of appeal or that any such rights had been forfeited. The fact that a notice of appeal, in certain cases, had to be lodged with the Secretary of State did not endow him with power to make such a declaration or to override or limit the rights of appeal embodied in the Act. 2. A decision to make a deportation order could be taken immediately after the expiry of limited leave: where an application for variation of leave had been made during the currency of earlier leave, leave was extended to a date 28 days after the date of refusal, by the Variation of Leave Order 1976. 3. Thus a decision to make a deportation order could be taken even while there was a pending appeal. Before the passing of the 1988 Act a pending appeal protected a person from the making of a deportation order, not from the decision to make the order, and it was the latter decision that had been appealable under s 15(1) (unamended). 4. The 1988 Act however (in s 5(1)) referred not to the power to make a decision to make a deportation order but to the power to make that order. In cases to which s 5(1) applied, there would be no such lawful power if there were an appeal pending. 5. Following the authorities no right of appeal arose unless the notice of appeal were properly served during a period of existing leave. 6. On the facts the respondent did not appeal until after her earlier leave, as extended by the Variation of Leave Order, had expired. 7. It followed therefore that she had no pending appeal and the Secretary of State on the relevant date had power in law to take the decision he had taken.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Subramaniam [1977] 1 QB 190: [1976] Imm AR 155. Suthendran v Immigration Appeal Tribunal [1977] AC 359 [1977] Imm AR 44. R v Immigration Appeal Adjudicator ex parte Bhanji [1977] Imm AR 89. Selo Wa-Selo v Secretary of State for the Home Department [1990] Imm AR 76. Adolphus Lokko v Secretary of State for the Home Department [1990] Imm AR 111. Mensah (unreported, 20 September 1976). Sabri (2645) (unreported).

Counsel:

D Wilmott for the appellant; Miss F Hadi for the respondent PANEL: Professor DC Jackson (Vice-President), GW Farmer Esq (Vice-President), N Kumar Esq JP

Judgment One:

IMMIGRATION APPEAL TRIBUNAL: The Secretary of State appeals against a decision of an adjudicator (Mr CO Richards OBE JP) allowing the appeal of Said Souhama Ken'aan against the decision to make a deportation order against her by virtue of section 3(5)(a) of the Immigration Act 1971. The case falls within the ambit of section 5(1) of the Immigration Act 1988 and the grounds of appeal are therefore restricted to asserting that there is in law no power to make the deportation order for the reasons stated in the notice of decision. The adjudicator allowed the appeal on the basis that the respondent had a "pending appeal" against a refusal to vary her leave to remain in this country. Miss Hadi told us that this was the sole point on which she relied. There is no dispute as to the relevant facts. The respondent appears to have arrived in this country on 29 October 1982 and was then admitted as a student. She last arrived in the United Kingdom on 18 May 1984 and was granted leave as a student ultimately until 7 July 1988. It appears that within that leave, the respondent applied for further leave to remain but this was refused on 14 October 1988. The notice of refusal was sent to the respondent's last known address but was not received by her. On 6 December 1988 the Home Office wrote to the respondent, that letter (so far as relevant) reading: "On 8 June 1988, 11 June 1988, 14 September 1988 and 4 October 1988 you applied for further leave to remain in the United Kingdom for the purpose of appealing against your university examination results. The application was refused with right of appeal on 14 October 1988. The notice of refusal was correctly served on your last known address but you failed to collect the package from the Post Office and you have not submitted an appeal against the decision within the permitted period. You have therefore forfeited your right of appeal against the decision". Following receipt of that letter, the Brighton Law Centre wrote to the Immigration and Nationality Department on 13 December requesting that the appellant be granted "leave to appeal against your decision out of time". There followed correspondence between the Department and the Law Centre with the Law Centre contending that there was power under the Immigration Appeals (Procedure) Rules to allow an out of time appeal to take its course. The adjudicator took the view that first of all there was no authority for the Home Office to declare that a right of appeal was "forfeited". Secondly, as this was an out of time appeal, the question of whether that appeal should proceed was for an adjudicator by virtue of rule 5(1) of the Immigration Appeals (Procedure) Rules 1984. The procedure in regard to such an application had not been followed, the respondent had an appeal pending and this was still to be determined by the appellate authorities. The issues before us The issue of whether the respondent has a "pending appeal" within the meaning of the Immigration Act 1971 depends primarily upon whether an appeal lay within the provisions of the Act. In considering this, we must also consider the effect of the Immigration Appeals (Procedure) Rules 1984 made under the Act. Arising out of the question of whether the respondent has an appeal pending, two further issues emerged: i. whether the Secretary of State has power to declare that a potential applicant has no right of appeal and thereby prevent a "pending appeal" arising; ii. whether if there is a "pending appeal", this is a ground on which an appeal against the decision to make a deportation order may or must be allowed. We take the latter two points first, for if the answer to either is unfavourable to the respondent, it matters not whether there is in being a "pending appeal". The power of the Secretary of State to declare that there is no right of appeal Mr Wilmott strongly argued that the structure of the Act conferred on the Secretary of State an authority to decide whether a person has a right of appeal. Mr Wilmott contended that there was no jurisdiction in the appellate authority to review any such decision by the Secretary of State. A decision that there was a right of appeal was challengeable only by judicial review. We find this contention surprising, for it would mean that one party to an appeal could control whether the other party had a right of appeal. It would further mean that the appellate authorities were powerless to decide whether an applicant had a right to rely on the appeal process. Mr Wilmott was unable to refer us to any statutory provision on which he could rely but he based his argument particularly on the procedure for appealing set out in the Procedure Rules. The applicable statutory and rule provisions The contention in this case focuses on the respondent's right to appeal from a refusal to vary her leave to remain. That right is set out in section 14(1) of the Immigration Act 1971. This reads: "14(1) Subject to the provisions of this Part of this Act, a person who has a limited leave under this Act to enter or remain in the United Kingdom may appeal to an adjudicator against any variation of the leave (whether as regards duration or conditions), or against any refusal to vary it; and a variation shall not take effect so long as an appeal is pending under this subsection against the variation, nor shall an appellant be required to leave the United Kingdom by reason of the expiration of his leave so long as his appeal is pending under this subsection against a refusal to enlarge or remove the limit on the duration of the leave". The definition of a "pending appeal" is contained in section 33(4) of the Act. This reads: "33(4) For purposes of this Act an appeal under Part II shall, subject to any express provision to the contrary, be treated as pending during the period beginning when notice of appeal is duly given and ending when the appeal is finally determined or withdrawn; and in the case of an appeal to an adjudicator, the appeal shall not be treated as finally determined so long as a further appeal can be brought by virtue of section 20 nor, if such an appeal is duly brought, until it is determined or withdrawn". The Immigration Appeals (Procedure) Rules provide for the procedure for exercising this right of appeal. Rule 6 provides that a notice of appeal should be given in writing and served on the appropriate officer -- in relation to some appeals, an immigration officer or entry clearance officer, and in relation to appeals such as that before us, the Secretary of State. Rule 6 provides for the transmitting of the notice of appeal to the appellate authority imposing an obligation upon the person receiving it in the Home Office to take these steps "as soon as practicable" either after the giving of the notice of appeal or after an explanatory statement (the subject of rule 8) is prepared. Rule 8 provides for the preparation as soon as practicable after the notice of appeal is given of an explanatory statement, that being a written statement of facts and the reasons for the decision. Rule 8(2) exempts an immigration officer from the requirement of producing an explanatory statement where it is not practical so to do having regard to the time available before the hearing of the appeal. Rule 8(3) reads: "8(3) Where the respondent to an appeal alleges that -- (a) the appellant is not entitled to appeal -- (i) by virtue of a provision of the Act specified by the respondent, or (ii) by reason that a passport or other travel document, certificate of entitlement, entry clearance or work permit (or any part thereof or entry therein) on which the appellant relies is a forgery or was issued to, and relates to, a person other than the appellant, or (iii) by reason that notice of appeal has not been signed by the appellant or by a person duly authorised by him in that behalf or, in the case of an appellant who is a minor or who is for any reason incapable of acting, by any person acting on his behalf; or (b) the notice of appeal was not given within the period permitted by Rule 4, the written statement referred to in paragraph (1) above shall include that allegation but it shall not be necesary for the respondent to include in the statement facts which are not relevant to the allegation". Rule 11(1)(2) reads: "11(1) Where the respondent to an appeal makes such an allegation as is mentioned in Rule 8(3), the appellate authority may, and at the request of the respondent shall, determine the validity of the allegation as a preliminary issue. (2) Unless in consequence of the determination of such a preliminary issue the appellate authority determines that -- (a) it has no jurisdiction to proceed, or (b) the appeal should be dismissed. the respondent shall, by such time as the appellate authority directs, submit to that authority a written statement of the facts relating to the decision or action in question to the extent that by virtue of the provisions of Rule 8(3) those facts have not already been furnished, and a copy of such a statement shall be given to the appellant". It must first be emphasised that the Procedure Rules cannot override or limit the right of appeal under the Act. It seems to us that the right of appeal is clearly set out in section 14 of the Act. The definition of the "pending appeal" set out in section 33(4) emphasises that the appeal is pending "when notice of appeal is duly given". It seems to us therefore to be unarguable that in some way the appellate jurisdiction is limited because of a procedure which requires that notice to be lodged with the Secretary of State and not with the appellate authority. By statutory provision, the appeal is pending and there is no power whatsoever in the Secretary of State to prevent that appeal from proceeding. We therefore agree with the adjudicator that the Secretary of State has no power to declare that an appeal is "forfeited". This view is in accordance with the view expressed by the Tribunal in Lokko [1990] Imm AR 111. In that case, the Tribunal declared that the jurisdiction of the appellate authorities did not depend upon the provision of an explanatory statement but, as we have said, on the lodging of the notice of appeal. It further seems to us that the provisions of the Procedure Rules far from contradicting the view we have expressed, support it. Rule 8(3)(a)(i) provides that the respondent may allege that the applicant is not entitled to appeal "by virtue of a provision of the Act specified by the respondent" Rule 11 provides that the Secretary of State may require the decision of whether an appeal lies to be determined as a preliminary issue. Rule 11(2) necessarily implies that the question for the appellate authority is whether "it" has jurisdiction to proceed. Those provisions in the rules, in our view, clearly put the decision taking power in the appellate authorities, the function of the Secretary of State being properly that of a party asserting that there is no appeal. Mr Wilmott drew our attention to a "Decision" by the Tribunal dated 20 September 1976 in Mensah. In refusing an application for leave to appeal, the Tribunal held that where there was no right of appeal under section 14(1), rule 8(3)(a)(i) of the Procedure Rules had no application. That applied only where it was statutorily provided that no right of appeal would lie -- not where a provision set out the rights of appeal. The adjudicator therefore had no jurisdiction to dismiss the appeal because there was no preliminary issue before him. A similar view was expressed in Sabri (2645). We should add that Miss Hadi had no opportunity to consult authorities produced by Mr Wilmott in support of this argument. Had we thought they would affect her case, we should of course had adjourned to allow her to consider them. With the greatest respect, we would not construe the Procedure Rules in the limited way they were approached in Mensah and Sabri. 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. Even if the rules are so limited, as we have said they cannot override the Act and from that it is clear that the jurisdictional trigger is the lodging of the notice of appeal. It follows it is then for the adjudicator to decide whether the lodging of the notice was properly based on a right of appeal. As was said in Lokko, it is open to an individual who lodges a notice of appeal pursuant to the Procedure Rules to request that that appeal be set down before an adjudicator. Clearly it would not be set down in a way which would prevent the procedure set out in the Procedure Rules from taking place unless the Home Office were not complying with those rules in the provision of an explanatory statement or indeed of forwarding the notice of appeal to the appellate authorities. The procedure adopted by the adjudicator in this case was in effect to provide the Home Office with an opportunity of carrying out the duties under the Procedure Rules. That, in our view, was a perfectly proper exercise of the adjudicator's discretion subject however to the prerequisite that the appeal that is said to be pending indeed lies under the Act. The effect of a pending "variation" appeal in a deportation appeal The appeal before us is an appeal against the decision to make a deportation order. As Mr Wilmott said, liability to deportation accrues at the moment of expiry of limited leave. A decision to make a deportation order may therefore be taken immediately the leave expires. Where an application for leave to remain has been made within the period of current leave, the leave will not expire until 28 days after the refusal or after the withdrawal of the application (Immigration (Variation of Leave) Order 1976 as amended by the Order of 1989). A decision to make a deportation order could therefore be taken immediately following the expiry of the leave conferred by the Order. As was pointed out by Lord Denning in R v IAT ex parte Subramaniam [1976] Imm AR 155 (a passage drawn to our attention by Mr Wilmott), the protection from removal because of a pending appeal protects against the making of a deportation order and not against the decision to make that order. The appeal before us is lodged by virtue of section 15(1) of the Act of 1971 but is also affected by section 5(1) of the Immigration Act 1988. Were it not affected by the 1988 Act, it would be clear that the existence of a pending appeal against the refusal to vary leave to remain would simply be a factor in considering a decision to make a deportation order. It would not mean that the decision could not have been taken or that the appeal should be allowed. However, the wording of section 5(1) of the 1988 Act is based not on the power to make a decision to make a deportation order, but on the power to make that order. The provision reads: "5(1) A person to whom this subsection applies shall not be entitled to appeal under section 15 of the principal Act against a decision to make a deportation order against him -- (a) by virtue of section 3(5)(a) of that Act (breach of limited leave); or (b) by virtue of section 3(5)(c) of that Act as belonging to the family of a person who is or has been ordered to be deported by virtue of section 3(5)(a), except on the ground that on the facts of his case there is in law no power to make the deportation order for the reasons stated in the notice of the decision". We assume for the present purposes that the enquiry as to whether there is in law any power is to be mounted as at the date of decision. Given that, it further seems to follow that if at that date there is no power to make a deportation order, then the appeal must be allowed. It follows from section 15(2) and the decision in Subramaniam that if there was a pending appeal at the date of decision, there was no power to make a deportation order. The appeal therefore must be allowed. This conclusion, in our view, makes sense, for the effect of section 5(1) is to remove from the appellate authorities any power to review the merits of a decision. The only opportunity therefore for a person to have the merits canvassed is an appeal against the refusal to vary the leave to remain. It is understandable to provide that while such an appeal is pending, no decision should be taken to make a deportation order in regard to which there is a restricted right of appeal. It follows that the question of whether there is a pending appeal is critical to the success of the respondent's case before us, and it further follows from our conclusion on (i) above that that matter is for the appellate authority and not for the Secretary of State to decide. We now turn to it. Is there a pending appeal against the refusal to vary leave? This point turns on the construction of section 14(1) of the Immigration Act 1971. The argument of Miss Hadi resurrects a point which since the decision in Suthendran v Immigration Appeal Tribunal [1977] Imm AR 44 and the making of the Variation of Leave Order 1976 has been relegated to a footnote (see eg Immigration law and practice, Macdonald, second edition at page 56). Miss Hadi argued that section 14 should be construed as meaning that a right of appeal lies if the refusal decision is taken when the applicant has limited leave to remain in this country. As Miss Hadi said, the common view since the Suthendran case has been a right of appeal will lie if the notice of appeal is lodged during the currency of the limited leave. The Variation of Leave Order introduced following Suthendran extends the leave of a person who applies for an extension within current leave to 28 days after the decision on that application. Subject to the power to allow an out of time appeal, the Procedure Rules require an appeal to be lodged within 14 days (rule 4). It followed that if the commonly accepted view is correct, the period within which the out of time provisions of the Procedure Rules can operate in respect of variation of leave is 14 days. Miss Hadi argued that if the critical time for the right of appeal was the date of the refusal of the application and not the lodging of the appeal, this would not lead to everlasting appeals. In this, she is undoubtedly correct. The construction of section 14(1) was connected in Suthendran and other cases to the meaning of variation of leave as provided for in section 3(3) of the Immigration Act 1971. It is established that leave cannot be varied unless it is in existence at the date of the variation. The Variation of Leave Order removed the possibility that variation was not within the Secretary of State's power simply because the initial leave had expired prior to the decision being taken -- the Variation of Leave Order operates only when an application to vary is made within current leave. Even on Miss Hadi's contention, therefore, there would be no right of appeal from a decision taken on an application made after the expiry of limited leave -- this indeed is in effect an application for new leave and in regard to such an application, no right of appeal is provided. Miss Hadi is further correct in saying that if the critical date for section 14 is the date of decision, the ability to lodge an appeal would be further controlled by the Procedure Rules. Any notice of appeal lodged after the 14 day period provided by those rules would only found an appeal if the appeal was allowed to proceed in accordance with the out of time criteria. However, the answer as to whether an appeal lies under section 14 depends on the construction of the Act and on any decisions which bind us. Miss Hadi pointed out that in Suthendran itself, the decision was by a majority of three to two. In the case of one of the majority (Lord Russell), it is arguable that he thought the critical question was whether there was any current leave to be varied at the date of the decision on the variation rather than at the lodging of an appeal from that decision. On the facts in Suthendran the applicant had not applied for leave until after the expiry of his previous leave and therefore there was no leave to vary in the first place. The question as to whether the critical date for section 14 is the date of decision or the date of lodging the appeal was therefore strictly irrelevant. In R v Immigration Appeals Adjudicator ex parte Bhanji [1977] Imm AR 89, the Court of Appeal clearly took the view that the Suthendran case decided that there was an entitlement to appeal only while the leave subsisted. Once again however, as in Suthendran, the applicant in the case did not apply for an extension of leave until after his leave had expired. In the recent decision of Selo Wa-Selo [1990] Imm AR 76, the Court of Appeal were asked to say that there had been a confusion between an appeal out of time and an application to vary limited leave out of time. On the facts, the applicant had obtained leave to enter the United Kingdom for one month and within that month he had applied for political asylum. That application was refused after the date of his initial leave but because of the Variation of Leave Order, his leave expired 28 days after the decision. The notice of the refusal did not reach the applicant and he did not learn of the refusal and hence of the expiry of his leave until some months later. In holding that no appeal would lie, Lloyd LJ said: " . . . This was an appeal. The extended leave which the applicant held expired on 9 November. Thereafter he was no longer the holder of a limited leave, and accordingly no appeal would lie. That was the very point which was decided in the Subramaniam case [1976] Imm AR 155". That case, on its facts, is on all fours with the present case in that the application for extension of leave was made within the initial period of leave and because of the Variation of Leave Order, the decision was rendered within the period of the extended leave. It seems clear that the Court of Appeal was reading section 14(1) as requiring (as it seems on its face to do) that a person who has limited leave has a right of appeal. The only problem is that with respect, this was not the point which was decided in Subramaniam. On the contrary, in that case the Court of Appeal took the view that section 14 presupposes that there has been an application to vary current leave ie that the application to extend leave has been made within the currency of the leave which is sought to vary. In their view, therefore, section 14(1) should be read "A person who at the time of applying for variation has a limited leave . . .". If that be right, the applicant in the Wa-Selo case would have succeeded. It is in truth the decision in Suthendran which presents the obstacle in the path of reading the provision in the way that the Court of Appeal in Subramaniam would have read it. Nevertheless, it seems to us that the Court of Appeal in the Wa-Selo case was looking at the section for itself. Further, with respect, it does seem to us as that, as Mr Wilmott said, the plain meaning of the provision is as was held -- that the right of appeal depends upon a person having limited leave at the time of the appeal. It follows, therefore, that in this case there was no pending appeal. We should just add that, if we understood Mr Wilmott aright, he did not argue that we would not have the power to decide for ourselves whether there was a pending appeal in the context in which the question arose before us. However, it would seem curious that the appellate authorities could decide this question in one context but not in another. If Mr Wilmott is right in his first contention, it would seem to follow that the appellate authorities would be bound by the Secretary of State's decision that he would not allow the appeal to proceed, for in his view there was no right of appeal. Mr Wilmott seemed to answer this point by relying on the Procedure Rules and arguing that where the question arose in the consideration of a substantive appeal, that was a matter with which we could deal, but where it arose on its own, there was no procedure for allowing the appellate authorities to deal with it. With respect, that again asserts the superiority of the Procedure Rules over the Act. That to our mind is an untenable contention. The adjudicator held that on the facts before us, the respondent had lodged an out of time appeal to an adjudicator within the meaning of rule 5 of the Procedure Rules. However, rule 5 qualifies the effect of rule 4 of the Procedure Rules which sets out time limits for the lodging of the notice of appeal. Both rules 4 and 5 presuppose a right of appeal and, in our view, the adjudicator should first have conducted an enquiry as to whether there was such a right in the respondent. As we have said, reading section 14 as conferring a right of appeal only where the appeal is lodged during current leave, there is in this case no right of appeal. There is no "pending appeal" and therefore, there is no ground on which it can be said that there was or is no power in law to make the deportation order for the reasons stated in the notice of decision. The appeal is allowed and the notice of the decision to make a deportation order reinstated.

DISPOSITION:

Appeal allowed

SOLICITORS:

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