O v. Immigration Officer, Heathrow
- Author: Immigration Appeal Tribunal
- Document source:
-
Date:
10 July 1992
O v IMMIGRATION OFFICER, HEATHROW
Immigration Appeal Tribunal
[1992] Imm AR 584
Hearing Date: 10 July 1992
10 July 1992
Index Terms:
Immigration Appeal Tribunal -- jurisdiction -- out of time appeal -- appellant given incorrect information on time limit by appellate authority -- whether Tribunal could assume jurisdiction at the request of both parties -- whether under the procedure rules it was the Secretary of State who had the obligation to advise an appellant of an adjudicator's determination and consequent procedural matters. Immigration Act 1971 ss 18(1), 19(1), 20(1), 22(5)(b): Immigration Appeals (Procedure) Rules 1984 rr 15, 37(1), 38, 39: Immigration Appeals (Notices) Regulations 1984 r 3(1).
Held:
The appellant was a citizen of Ghana who arrived in the United Kingdom with current entry clearance. He was questioned in relation to his seeking leave to enter as a visitor, and claimed political asylum. He was subsequently refused leave to enter. He appealed. His appeal was dismissed by an adjudicator both as to the refusal of leave to enter as a visitor and on the basis of asylum. He had a right of appeal to the Tribunal. When the adjudicator's determination was sent to him, the appellate authorities incorrectly stated that he had 42 days in which to lodge an application for leave to appeal to the Tribunal: in fact, under the procedure rules he had only 14 days. His notice was lodged after 14 days but before 42 days had elapsed. Leave to appeal was granted. The immigration officer served notice that at the hearing the preliminary point would be raised that the appeal application was out of time. However before the Tribunal and in the light of the error by the appellate authorities, the representative of the respondent did not pursue the point; he and counsel for the appellant were content for the Tribunal to assume jurisdiction. Counsel for the appellant also argued that under the procedure rules the Tribunal was entitled to assume jurisdiction if the parties jointly agreed that it should. Counsel also argued that under the notices regulations it was the Secretary of State who should have forwarded the adjudicator's determination and information on subsequent opportunities to appeal: reliance could not therefore be placed on the notice from the appellate authorities as indicating the date from which time began to run for the purpose of an appeal to the Tribunal. Held 1. The Tribunal, a creature of statute, could not assume a jurisdiction not given to it by statute, at the request of the parties. Procedure rule 37(c) which provided for an agreed determination in some circumstances had no relevance to the issue of jurisdiction. 2. The provision of the notices regulations on which counsel relied had no application to the promulgation of a determination, which under the procedure rules was the responsibility of the appellate authorities. 3. Following Patel the Tribunal was not barred from considering its jurisdiction once leave to appeal had been granted. 4. In the events which had happened, the Tribunal, with no discretion to extend the time limit for lodging an appeal, had no jurisdiction.Cases referred to in the Judgment:
Mohammed Noorhu v Secretary of State for the Home Department [1984] Imm AR 190. Masumali Sherif Mawji and ors v Secretary of State for the Home Department [1986] Imm AR 290. R v Immigration Appeal Tribunal ex parte Secretary of State for the Home Department [1990] Imm AR 166. Entry Clearance Officer, Bombay v Khalid Suleman Patel [1991] Imm AR 553.Counsel:
Miss M Teo for the appellant; G Lockwood for the respondent PANEL: Professor DC Jackson (Vice-President), BJS Edmonds Esq, N Kumar EsqJudgment One:
THE TRIBUNAL: The appellant, a citizen of Ghana, appeals against the decision of an adjudicator (Mr EJT Housden) dismissing his appeals against the refusal of (i) leave to enter; and (ii) asylum. The appellant had a current "Single Visit" visa on arrival. During his examination in respect of his application based on his entry clearance, the appellant applied for asylum. On 2 January 1991 the asylum application was refused. On 5 January 1991 the visa was declared ineffective and, as under the immigration rules he required a visa for a visit, leave to enter was refused. The refusal reads: "You hold a current visa endorsed 'Single Visit' but I am satisfied that false representations were employed and material facts were not disclosed for the purpose of obtaining the entry clearance. Furthermore, I am satisfied that a change of circumstances since it was issued has removed the basis of your claim to admission. The visa is not, therefore, effective". The appellant's right of appeal As on his arrival the appellant held a current entry clearance, he fell within the ambit of section 22(5) of the Immigration Act 1971. So far as relevant, this reads: "22(5) If under the rules of procedure leave to appeal to the Tribunal is required in cases where an adjudicator dismisses an appeal under section 13 above, then the authority having power to grant leave to appeal shall grant it --. . .
(b) in any case where the appeal was against a refusal of leave to enter, and the authority is satisfied that at the time of the refusal the appellant held an entry clearance and that the dismissal of the appeal was not required by section 13(4)". As the application for asylum had been made during the examination in respect of the visit application, and the decision had been given prior to the refusal of the visit application, the appellant had a right of appeal in respect of both asylum and visit applications. The appellant exercised the right of appeal, the appeal being heard on 2 April 1992. The determination was promulgated on 7 April 1992. A copy of the determination was sent to the appellant's solicitors, accompanied by form ADJ 24 dated 7 April 1992. Form ADJ 24 reads in part: "A party has the right to apply for leave to appeal against the Adjudicator's determination and I am enclosing a form of application. Any application to an Adjudicator for leave to appeal must be made forthwith. Any application to the Tribunal must be submitted to the address given below to arrive within 14/42 days of the date of this notice or, where the determination was delivered orally at the hearing in the presence of the appellant or his representative, within 14/42 days of the date of oral delivery". By letter of 13 May 1992, a chief immigration officer wrote to the appellate authority. That letter reads: "I write further to our telephone conversation of 8 May. The appeal of the above named was dismissed by the Adjudicator on 7 April 1992. In error the adjudicators' office gave him forty-two days to appeal to the Tribunal and not the fourteen days as prescribed by rule 15(2) of the Immigration Appeal Rules. I understand that the appellant has now made an application to the Tribunal. In view of the error made by the Adjudicators' office and the length of time that the appellant has already spent in detention I would ask that his application be dealt with as soon as possible. This letter is written with the knowledge and agreement of the appellant's representatives (Gordon, Doctors and Walton, 350-352 Walworth Road, London SE17 -- their ref JL AS 0), and I have copied it to them". By notice of 15 May 1992, the Tribunal acknowledged receipt of the application and, by determination of 22 May 1992, the President granted leave to appeal. That determination reads: "The Applicant, a citizen of Ghana, has applied to the Tribunal for leave to appeal against the determination of an Adjudicator (Mr EJT Housden) dismissing his appeal against the refusal on 5 January 1991 of leave to enter the United Kingdom. On arrival at Heathrow airport the applicant held a current visa endorsed 'Single Visit'. Leave to appeal to the Tribunal is granted." By letter of 23 June 1992 Mr W Patterson, an inspector in the immigration service, wrote to say that, as a preliminary issue, he proposed to submit that the Tribunal had no jurisdiction. Mr Patterson's letter continues: "It appears that the application for leave to appeal to the Tribunal in this case was not made in accordance with rule 15 of the Immigration Appeals (Procedure) Rules in that the application was not lodged within the time limit specified by that Rule". This determination is concerned solely with whether, in the circumstances set out, the Tribunal has jurisdiction to consider the appeal. Proceedings before the Tribunal When we heard the case on 8 July 1992, Mr Lockwood indicated that he did not wish to press the jurisdiction point. He said on 3 July 1992 a differently constituted Tribunal had ruled that in circumstances such as the present, as a matter of common sense and justice the Tribunal should exercise jurisdiction (Mohammad Imran and ors v Immigration Offcer, Gatwick North, (unreported, TH/22708/91 (9166)). Secondly, said Mr Lockwood, he bore in mind the letter of 13 May 1992 and, in the light of that letter and the Tribunal decision, he would not object if the Tribunal asserted jurisdiction. However, both he and Miss Teo agreed that the matter was for the Tribunal. We therefore heard argument on it. The time limits for appealing are set out in the Immigration Appeals (Procedure) Rules 1984 made under section 22 of the Immigration Act 1971. Rule 15 reads: "15(1) Application to an adjudicator for leave to appeal shall be made forthwith after the determination in question. (2) Application to the Tribunal for leave to appeal or notice of appeal may be made or given not later than 14 days after the determination in question. (3) Where the applicant or the appellant, as the case may be, is the person against whom the decision or action in question was taken and he is not in the United Kingdom, the Isle of Man, the Channel Islands or the Republic of Ireland, paragraph (2) above shall have effect as if for the words "14 days" there were substituted the words "42 days". (4) In this Rule any reference to a determination is reference -- (a) where it is pronounced at a hearing in the presence of the appellant or his representative, to its pronouncement; (b) in any other case, to the sending to the appellant in accordance with Rule 44, or to the delivery to the appellant, of a copy of the document, referred to in Rule 39(3), recording the determination". It is common ground that the application in this case was made subsequent to 14 days after the determination, but before the expiry of 42 days. It is also common ground that the period applicable to the case under rule 15 is 14 days. Under the Procedure Rules the Tribunal are given power to correct any irregularity resulting from failure to comply with the rules before it has reached its decision (rule 38) and, further, under rule 37 (headed "Miscellaneous powers") an appellate authority may (inter alia): "(c) if the parties to an appeal agree in writing upon the terms of a determination to be made by the appellate authority, determine the appeal accordingly". The time limit imposed by rule 15 is mandatory (see R v Immigration Appeal Tribunal ex parte Secretary of State [1990] Imm AR 166). In that case the Divisional Court held that the Tribunal had no power to correct any failure to lodge the application within time by reliance on rule 38, and Miss Teo did not seek to rely on that rule. She did however argue that rule 37(c), set out above, conferred upon the Tribunal a power to hear a case if the parties agreed. In our view, it is quite clear that on the express words of rule 37(c), it applies only to the terms of a determination and has no relevance to the jurisdiction to hear an appeal. Miss Teo further sought to rely on the provisions of the Immigration Appeals (Notices) Regulations 1984 made under section 18(1) of the Immigration Act 1971. Regulation 3(1) reads: "3(1) Subject to the following provisions of this Regulation, written notice of any decision or action which is appealable (or would be appealable but for the grounds of the decision or action) shall as soon as practicable be given in accordance with the provisions of these Regulations to the person in respect of whom the decision or action was taken". If any relevant duty to give notice arises in this case, it falls on the Secretary of State (regulation 3(2)). Miss Teo sought to apply the obligation to give notice to a determination of the adjudicator by virtue of section 18(1)(a) of the Immigration Act 1971 under which the Notices Regulations are made. That part of the sub-section empowers the Secretary of State to make regulations "for written notice to be given to a person of any such decision or action taken in respect of him as is appealable under this Part of this Act . . ." Miss Teo argued that a determination of an adjudicator was such a decision. It followed, contended Miss Teo, that as the Secretary of State had either not given notice of the decision or had given a defective notice (the period for the lodging of the application being wrongly stated), the decision as to which the notice related was a nullity (see Noorhu v Secretary of State [1984] Imm AR 190; Mawji v Secretary of State [1986] Imm AR 290). With respect, this argument simply cannot stand. As Mr Lockwood said, the obligation to give notice of a determination falls on the appellate authority under the Procedure Rules (see rule 39). Indeed, as a matter of practicality, it could hardly be otherwise. It would require precise wording in the Immigration Act 1971 and the Notices Regulations for a concurrent obligation to be imposed on the Secretary of State. It seems clear to us that section 18(1) of the Act applies to a decision by the executive which is appealable under the appellate process. The word "decision" is used consistently in this context (see eg section 19(1)), and equally consistently the word "determination" is used in respect of judgments on appeal. So, section 20(1) provides for an appeal to the Appeal Tribunal from the "determination" on an appeal by an adjudicator. Thirdly, Miss Teo argued that the Tribunal did not have the power to consider its own jurisdiction once leave to appeal had been granted. As the Tribunal said to Miss Teo, authority was against her, the matter having been considered in Entry Clearance Officer, Bombay v Patel [1991] Imm AR 553. In that case, the Tribunal said: ". . . On the other hand, the granting of an application for leave to appeal simply indicates that there are arguable points to be put. It does not seem to us that the grant of leave should be taken as depriving a Tribunal of the power and duty to examine its own powers when it comes to hearing the appeal. So, by statute and the procedure rules, in many cases an appeal cannot reach the Tribunal unless leave has been granted. It was established that the time limit for making the application is mandatory, and therefore it would follow that any leave granted when the mandatory requirement had not been complied with could not confer jurisdiction on the Tribunal hearing the appeal". The example given by the Tribunal in that case is precisely the point in this case. We agree with the Tribunal's view in Patel, that the grant of leave does not and cannot deprive the Tribunal of the power and the duty to consider a jurisdiction point before it. Miss Teo argued further that the Secretary of State was estopped by the letter of 13 May 1992 from arguing that there was no appeal pending. This argument is, however, with respect, not relevant to the jurisdiction of the Tribunal and indeed, as we have said, Mr Lockwood now does not seek to press the argument as to lack of jurisdiction. In substance, therefore, we are faced with a case where the parties seek to confer jurisdiction on the Tribunal by agreement. The Tribunal is an appellate body created by statute, and its jurisdiction comes solely from and through the statute. Section 20(1) provides: "20(1) Subject to any requirement of rules of procedure as to leave to appeal, any party to an appeal to an adjudicator may, if dissatisfied with his determination thereon, appeal to the Appeal Tribunal, and the Tribunal may affirm the determination or make any other determination which could have been made by the adjudicator". The rules of procedure provide for leave to appeal and provide that applications for that leave be lodged within a specific period of time. As we have said above, that requirement is mandatory, and once that is decided it is apparent that no agreement of the parties can circumvent the mandatory provision. The same reasoning applies to prevent Miss Teo from relying on the mistake made by the clerk who despatched form ADJ 24. Just as the jurisdiction cannot be conferred by the agreement of the parties, soit cannot be conferred by an act of one of the administrative or clerical staff of the appellate authority. The mistake is indeed regrettable and misleading, but the despatch of such a form does not remove from an appellant or a representative the responsibility for ensuring compliance with procedural steps in order for an appeal to be lodged. We should stress, however, that we do not base any conclusion on that responsibility but simply that the jurisdiction of the Tribunal is based on statute, and through statute on the procedure rules. It follows that there is no matter before us. The appeal is dismissed insofar as we declare that as the application for leave was lodged out of time, we have no jurisdiction in the matter.DISPOSITION:
Appeal dismissedSOLICITORS:
Solicitors for the appellant: Gordon, Doctors and Walton, London SE17.Disclaimer: Crown Copyright
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