Sogunle v. Secretary of State for the Home Department

SOGUNLE v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Immigration Appeal Tribunal

[1994] Imm AR 554

Hearing Date: 4 July 1994

4 July 1994

Index Terms:

Appeal -- adjudicator -- notice of appeal gave representative's address -- did not include address of appellant -- whether notice of appeal valid -- whether a valid appeal before the adjudicator. Immigration Appeals (Procedure) Rules 1984 r 6.

Held:

The appellant was a citizen of Nigeria against whom the Secretary of State had decided to initiate deportation proceedings pursuant to s 3(5)(a) of the 1971 Act. Similar proceedings were begun against her husband, they both being long-time overstayers. The notice of appeal to the adjudicator gave the name and address of the appellant's then representative: it did not contain the home address of the appellant. The adjudicator held, following the Tribunal decision in Ibrahim, that there was no valid notice of appeal and no valid appeal before him -- albeit he did deal with the merits of the case, in the absence of the appellant, having refused an adjournment sought in his view on unacceptable grounds. Before the Tribunal it was argued that the requirement for the appellant's address to be inserted in the notice of appeal was not mandatory. Held 1. Following Hamida Begum the use of the word "shall" in the procedure rules did not necessarily mean that a requirement was mandatory. 2. Following Jarvis, the validity of a notice would be determined by whether the notice "sufficiently identified the appellant so as to relate the notice to the particular case". 3. In the instant case the notice of appeal as submitted satisfied the test in Jarvis.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Hamida Begum [1988] Imm AR 199. Crestita Jarvis v Entry Clearance Officer Manila [1994] Imm AR 102. Ibrahim (unreported) (10362).

Counsel:

CJ Brion for the appellant; B Waight for the respondent PANEL: Professor DC Jackson (Vice-President), AG Jeevanjee Esq, P Rogers Esq JP

Judgment One:

THE TRIBUNAL: The appellant, a citizen of Nigeria appeals from a decision of an adjudicator (Mr J Fox) dismissing his appeal against the decision by the Secretary of State to make a deportation order against him by virtue of section 3(5)(a) of the Immigration Act 1971. On the same occasion as hearing this appeal the adjudicator heard an appeal by the appellant's husband against a decision to make a deportation order against him on grounds similar to those asserted against his wife. He also appeals to us and we too heard the appeals on the same occasion. The appellant arrived in this country on 28 March 1982 and the decision to make the deportation order was made on 27 May 1993. The appellant is therefore not within the ambit of section 5(1) of the Immigration Act 1988 but has a right of appeal on the merits. The case was first listed before an adjudicator for hearing on 22 October 1993 but was adjourned by consent and relisted for 30 November 1993. By fax of 24 November Brion and Company requested a further adjournment on the ground that the appellant's son had undergone an operation for a major hearing defect on 23 November and would require constant supervision from his parents for two weeks after he was discharged. This request was supported by a letter from Kings College Hospital certifying that both his parents would be required for after-care for a minimum of two weeks. That application was refused. At the hearing Miss J A Brion represented the appellant but neither the appellant nor his wife attended. Miss Brion applied again for an adjournment on the grounds set out in the written communication. The adjudicator refused that adjournment saying: "I also advised Miss Brion that there was no reason why one of the Appellants could not have attended as the child did not require both the parents to care for him. In addition, the appellants have had ample time in which to submit a detailed medical report as to the child's condition and a medical certificate, that it is essential for both parents to care for the child." In those circumstances Miss Brion said that she could not proceed with the appeal as the appellant was not present. The adjudicator stated that he was satisfied that he was empowered to determine the matter by virtue of rule 34(2) of the Immigration Appeals (Procedure) Rules (1984). Prior to refusing the adjournment the adjudicator had indicated to Miss Brion that he was not satisfied that he had jurisdiction to hear the appeal -- apparently on the ground that on the notice of appeal the address of the appellant is stated to be "care of Afro Asian Advisory Services, 53 Addington Square, SE5" -- this being the address of the appellant's then representatives. Miss Brion applied to amend the notice to insert the name of Brion and Company. As to this procedural point the adjudicator held: "In my view, the Notice of Appeal which has been submitted in this Appeal is invalid as it was not completed in accordance with Rule 6 of the Immigration Appeals (Procedure) Rules 1984. The Notice of Appeal does not give the address of the Appellant, he is described as care of Afro Asian Advisory Service, 53 Addington Square, SE5 which is the address of his then representatives. Both Rule 6(5) and Rule 6(3)(a) use the word "shall". In my view and following the decision in Ibrahim the requirements of the rule are mandatory. The Appellant's representative was given an opportunity to cure the defect, and chose deliberately to describe the Appellant as being care of Brion & Co. In my view that amendment does not cure the defect. It is my opinion, the purpose of the rule particularly in relation to deportation appeals is that the Appellant should be required to disclose his address so that his whereabouts are known to the Appellate Authorities. Information with service of process in relation to the Appeal and in relation to the whereabouts of the Appellant being named to the Authorities. Accordingly, I dismiss the Appeal." The adjudicator however went on to consider the merits of the matter in case he was wrong in holding that he had no jurisdiction. The adjudicator reviewed the evidence before him set out the factors to be taken into account in accordance with the immigration rules and dismissed the appeal. The adjournment The adjudicator refused the adjournment request and considered the case by virtue of his power under rule 34(2) of the 1984 Procedure Rules. That rule gives the authority to the adjudicator to proceed with the hearing of an appeal in the absence of a party provided notice of the time and place of the hearing has been given to the party or his representatives. It has to be noted however that by rule 34(3) it is provided that the authority should not proceed with the hearing in pursuance of rule 34(2) "if the absent party has furnished the authority with an explanation of his absence". Mr Waight did not seek to support the adjudicator's decision not to adjourn the case. It has to be remembered that this case was a matter of considerable importance to the appellant, that, as Mr Waight has said to us, it was necessarily connected with the appeal of the appellant's wife and that it was an appeal in which oral evidence would no doubt play an important part. We were told by Mr Brion that Mrs Segunle had had a child on 27 May 1994 and that at the time of the hearing before the adjudicator she would have been some months pregnant. In these circumstances in our view the adjudicator erred in not accepting the explanation for the appellant's absence backed as it was by a medical opinion. The adjournment should have been granted. The jurisdiction point In our view the adjudicator further erred in his view that he had no jurisdiction to consider the appeal because the only address provided was that of the appellant's representative. So far as relevant, rule 6 of the Procedure Rules 1984 provides: "6. (1) Notice of appeal shall be given by furnishing, in writing, and serving on the appropriate officer specified in paragraph (2) below, the particulars specified in paragraph (3) below: (3) 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. (4) The grounds of an appeal particularised in a notice of appeal may be varied or amplified at any time during the course of the appeal. (5) The notice of appeal shall be 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." In emphasising that rules 6(3) and 6(5) use the word "shall" the adjudicator followed the Tribunal decision in Ibrahim (10362). That case was concerned with the appeal against the refusal of a husband entry clearance. The name of the sponsor was given as the name of the appellant with the representative being specified. Counsel in that case accepted that if the rules were mandatory then the appeal could not be sustained. In holding that there was no valid appeal before the adjudicator the Tribunal said: "Both rules 6(5) and rules 6(3)(a) use the word "shall" which in our view expresses the intention of those who drafted the rules that the requirements are mandatory." Regrettably the Tribunal's attention was not drawn to the High Court decision in R v Immigration Appeal Tribunal ex parte Hamida Begum [1988] Imm AR 199. In that case Simon Brown J held that rule of the then current procedure rules requiring "that an application for leave to appeal shall be given or made by completing so much of Form 2 as relates to the notice . . . was not imperative but directory." It follows that the word "shall" in the procedure rules does not necessarily mean that the particular rule is imperative or "mandatory". In our respectful view the basis of the decision in Ibrahim is inconsistent with the basis of the decision in Hamida Begum. A decision directly contrary to Ibrahim was reached by a differently constituted Tribunal in Jarvis [1994] Imm AR 102. In that case as in Ibrahim the "defect" in the notice of appeal was that in a marriage case the name of the sponsor was entered as the appellant. Relying on the principles adumbrated in Hamida Begum the Tribunal held that the substantive issue in respect of the contents of the notice of appeal is whether the notice "sufficiently identified the appellant so as to relate the notice to the particular case". Given that the purpose of each rule should be considered to decide the extent to which it is imperative, the failure to state any address may mean that the notice is invalid but once an address is inserted and that address is plainly realistic the "identification" of the appellant is sufficient for the appeal process to be carried out. Even if the adjudicator's reason for the purpose of the rule be accepted the address of the appellant's representative provides the appellate authority with an address appropriate for service of documents. We add only, as did the Tribunal in Jarvis, that, with respect, an adjudicator faced with a notice of appeal which does not precisely comply with the procedure rules should be cautious about holding that there is no valid appeal. The purpose of the procedure rules is to ensure that there is efficient and smooth-running of the appellate process. Whether non-compliance with the procedure rule should lead to the drastic consequence of the loss of the substantive right of appeal should be considered with the distinction between procedure and substance firmly in mind. Mr Brion and Mr Waight joined in submitting that the matter should be remitted for a substantive hearing. Mr Waight said that he did not seek to rely on the Tribunal decision in Ibrahim. The appeal is allowed insofar as the matter is remitted for a rehearing de novo before an adjudicator other than Mr Fox in accordance with the principles adumbrated in this determination.

DISPOSITION:

Remitted for re-hearing

SOLICITORS:

Representatives of the appellant: Brion & Co