Akhuemonkhan v Secretary of State for the Home Department

AKHUEMONKHAN v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Immigration Appeal Tribunal
Mr G. W. Farmer (Chairman), Mrs J. Chatwani and Professor D. C. Jackson
10 January 1997

Asylum - Abandonment of appeal - Whether special adjudicator's decision to treat appeal as abandoned constitutes 'determination' - Whether right of appeal to Immigration Appeal Tribunal exists in abandonment cases Extent of immigration Appeal Tribunal's powers in abandonment appeals - Extent of special adjudicator's duty to consider merits, make findings of fact and to provide reasons in abandonment cases - Whether appellate authority's failure to notify party of time-limit for appealing or to provide relevant appeal forms invalidates notification of determination Immigration Act 1971, ss 19, 20 - Asylum Appeals (Procedure) Rules 1996, r 35(4), (5) The appellant, a national of Nigeria, entered the UK on 2 May 1993 using a forged British passport. He applied for asylum in March 1994. His application was refused by the Secretary of State on 28 January 1996. The appellant appealed to a-special adjudicator and, following notices of hearing sent to both the appellant and his representatives, an appeal hearing was listed for 30 October 1996. At the appeal hearing neither the appellant nor his representatives appeared, and the Secretary of State's representative submitted that, as notice of hearings had been duly issued, the special adjudicator should treat the appeal as abandoned. The special adjudicator treated the appeal as abandoned pursuant to r 35(4) of the Asylum Appeals (Procedure) Rules 1996 and a document was signed stating that 'Notice is hereby given pursuant to r 35(4)(b) and (5) of the Asylum Appeals (Procedure) Rules 1996 that the special adjudicator is satisfied that the above-mentioned appeal has been abandoned'. That document was sent to the appellant's representatives on 31 October 1996 along with a covering note stating: 'I enclose two copies of the abandonment notice signed by a special adjudicator'. On 12 November 1996 the appellant's representatives wrote to the appellate authority asserting that the appeal had not been abandoned and requested another hearing date. The Immigration Appeal Tribunal treated the letter of 12 November 1996 as an application for leave to appeal and granted leave. At the Tribunal hearing the appellant and his representatives again did not appear. Held - allowing the appeal - (1)Where there is a right of appeal to the Tribunal, the practice is for the appellate authority to send with the determination of the adjudicator, first, a covering letter indicating that there is a right to apply for leave to appeal and the period within such an application should be made and, secondly, a copy of the relevant application form. A failure to notify a party of the time-limit within which an application for leave to appeal to the Tribunal has to be lodged or a failure to provide the necessary appeal forms simply invalidates the notification of the determination. (2)If an adjudicator decides that an appeal has been abandoned pursuant to r 35(4) and (5) of the 1996 rules then the special adjudicator need not consider the merits of the appeal. Section 19 of the Immigration Act 1971 obliges the special adjudicator to dismiss the appeal and such a dismissal will constitute a 'determination' within the meaning of s 20 of the 1971 Act. Subject to the requirement of leave, however, an appellant has a right to appeal to the Tribunal pursuant to s 20 of the 1971 Act from any decision by a special adjudicator treating an appeal as abandoned. Where, on appeal, the Tribunal disagrees with the application of r 35(4) and the matter has to be reconsidered, the Tribunal itself cannot apply r 35(4) and must remit the case to a special adjudicator. (3)A special adjudicator must take into account all relevant considerations before applying r 35(4). The notice of decision must contain the elements specified in r 35(5) and, by virtue of r 2(3), the relevant findings of fact and the reasons for applying the rule. As the notice issued by the special adjudicator in the instant case gave no information as to why he was satisfied that the appeal was abandoned, the special adjudicator had erred in law.

Statutory provisions considered

Immigration Act 1971, ss 19(1), 20, 22, 33(4) Asylum and Immigration Appeals Act 1993, ss 8(4), 9(5), Sch 2, paras 4(2), 7, 8, 9 Asylum and Immigration Act 1996, Sch 2, para 4(2) Immigration Appeals (Procedure) Rules 1984 (ST 1984/204 1), rr 8(3), 12 Asylum Appeals (Procedure) Rules 1996 (SI 1996/2070), rr 2(3), 13(2), 23, 33(1), (2), (3), 3 5(1), (2), (4), (5), 42(1)

Cases referred to in judgment

Ajuebor (unreported) (11437), IAT 0 v Immigration Officer, Heathrow [1992] Imm AR 584, IAT R v Immigration Appeal Tribunal ex parte Nazarali Kassam Lila and Another [1978] Imm AR 50, DC Rahman (Akikur) v Immigration Appeal Tribunal, Secretary of State for the Home Department, Chief Adjudicator [1995] Imm AR 372, CA Tusin (Marspan) v Secretary of State for the Home Department [1984] Imm AR 42, IAT The appellant did not appear and was not represented. Mr A. Dent (Home Office presenting officer) for the respondent MR G. W. FARMER (CHAIRMAN): The appellant, a citizen of Nigeria, appeals against the decision of an adjudicator (Mr B. Watkins CMG) declaring that his appeal against the giving of removal directions as an illegal entrant has been abandoned. Before us there was no appearance by or on behalf of the appellant. The Secretary of State was represented by Mr A. Dent. The appellant has throughout the appellate proceedings been represented by Omade Associates, legal consultants of London. It was to these representatives that notification of the adjudicator's decision was sent on 31 October 1996. By letter of 12 November 1996 Omade Associates wrote to the appellate authority asserting that the hearing had not been abandoned and requested on their client's behalf another date to be given for the appeal hearing. This was treated as an application for leave to appeal and leave was granted on 2 December 1996. The granting of leave was notified to the representatives by letter of 2 December 1996 and by a further letter of 6 December 1996 the representatives were notified of the date, time and place of the Tribunal hearing. A copy of the Tribunal file was sent to them. There has been no response to either letter from the Tribunal and so far as we know no communication by the appellant or his representatives since the letter of 12 November 1996. Given the notification of the hearing, on the evidence before us there is no explanation for the absence of the appellant or his representative. In these circumstances the Tribunal is under an obligation to proceed with the hearing in the absence of the appellant; Asylum Appeals (Procedure) Rules 1996, r 33(3) (hereafter 'the Procedure Rules'). Even if the matter were discretionary (as under r 33(2)) we would have exercised our discretion to proceed with the hearing.

The background and consideration by the adjudicator

It appears from the papers forwarded to the appellate authority by the immigration and Nationality Department that the appellant allegedly arrived in the UK on 2 May 1993 carrying a British passport in another name. He applied for asylum on 14 March 1994, completed a self-completion questionnaire in September 1994 and was interviewed on 30 August 1995. His application was refused on 28 January 1996 and the appeal lodged on 7 February 1996. The appeal hearing before the adjudicator was listed for 30 October 1996 and notices were sent to the appellant's representatives and to the appellant. There was no appearance before the adjudicator by or on behalf of the appellant. In the brief record of proceedings it is stated that there was no appearance, that the presenting officer submitted that a notice of hearing had been duly issued and that he asked that the appeal be treated as abandoned. The adjudicator noted that the appeal was to be treated as abandoned under r 35(4)(b) of the Procedure Rules. The decision was promulgated through a document signed by the adjudicator and reading:

'Notice is hereby given pursuant to r 35(4)(b) and (5) of the Asylum Appeals (Procedure) Rules 1996 that the special adjudicator is satisfied that the above-mentioned appeal has been abandoned. Dated 30 October 1996.'

That document was sent to the appellant's representatives and the Immigration and Nationality Department on 31 October 1996 with a covering note reading:

'Re: Daniel Akhuemonkhan

I enclose two copies of the abandonment notice signed by a special adjudicator.'

This covering note was signed by a clerk to the adjudicator.

The issues in this case

The case raises the question of the construction of r 35 (4), (5) of the Procedure Rules both of itself and in relation to other rules, and the format which any decision under that rule should take. Two preliminary issues are whether there is a right of appeal to the Tribunal from a decision that r 35(4) applies and, if so, whether the application for leave to appeal was made within the period specified by the Procedure Rules.

The 'abandonment' rule

Rule 35 confers upon the appellate authority power to determine an appeal without a hearing. Rule 35(l) confers a discretionary power on an adjudicator so to determine an appeal in specified circumstances and the paragraph is applied to the Tribunal by r 35(2). Rule 35(4) and (5) are relevant to this case. They read:

'(4)This paragraph applies where -

(a)the decision appealed against has been withdrawn or reversed by the respondent, and the special adjudicator is satisfied that written notice of the withdrawal or reversal has been given to the appellant by the respondent; or

(b)the special adjudicator is satisfied, having regard to the material before him or to the conduct of the appellant or his failure to appear or otherwise to prosecute the appeal, that the appeal has been abandoned; or

(c)the special adjudicator is satisfied, having regard to the material before him or to the conduct of any party, that the decision appealed against has been withdrawn.

(5)Where the appellant authority is satisfied that -

(a)the appellant was notified of the hearing date, and

(b)the provisions of paragraph (4) apply to the appeal,

it shall send to the parties written notice that paragraph (4) applies (specifying the sub-paragraph which is appropriate) and it shall not be necessary to hold a hearing in order to determine the appeal or to issue a written notice of determination.'

A right to seek leave to appeal to the Tribunal?

Mr Dent touched on this matter in raising the question as to whether the notice which the adjudicator promulgated was a determination, a matter also relevant to the validity under the rules of the notice as a record of the decision. In that regard Mr Dent referred us to r 2(3) which reads:

'For the purposes of these Rules -

(a)an appeal is determined when written notice is sent of the decision whether or not the appeal should be allowed and expressions such as "determination" and "notice of determination" shall be construed accordingly.

(b)every determination shall consist of a concise statement of -

(i)the decision on the substantial issues raised,

(ii)any findings of fact material to the decision,

(iii)the reasons for the decision.'

Before considering the relationship between rr 2(3) and 35(5) the question arises of the right of appeal from the adjudicator's decision to the Tribunal. Mr Dent stressed the need for a robust approach to the Procedure Rules in order to fulfil their purpose of speedy justice. However, Mr Dent said, there was also the need of the Home Office for finality in the appeal procedure and therefore the removal of any uncertainty as to the construction of the rules. Mr Dent did not argue in terms that the Tribunal did not have jurisdiction in this case and emphasised the need for guidance to adjudicators and consistency in approach.

The right of appeal and the time-limit for making an application for leave to appeal

By virtue of rr 13(2) and 42(l) the time-limit for making the application for leave was 7 working days after the date of sending 'notice of the determination' (ie 11 November 1996). It follows that assuming the decision to be appealable and the document recording it to be a determination the application was out of time if the notification was valid. There must be some thought within the appellate authority that no appeal right exists, for (to us curiously) the administration has apparently unilaterally taken upon itself the decision that the appeal forms made applicable by the 1996 Act to appeals from an adjudicator to the Tribunal normal covering letter should not be sent with decisions taken under r 35. Hence the cryptic and wholly descriptive message accompanying the 'abandonment notice' to the appellant's representatives.

The normal practice

Where there is a right of appeal to the Tribunal the practice is for the appellate authority to send with the determination of the adjudicator a covering letter indicating that there is a right to apply for leave to appeal and the period within which such an application should be made, and to include a copy of the form made appropriate to the application by the Asylum Appeals (Procedure) Rules 1996. It seems to us that where, as here, there is clearly no express statutory guidance it is at best naive for the administration of the appellate authority to change practice until the Tribunal or a higher court has pronounced upon Tribunal jurisdiction. In our view if indeed there is a right of appeal the failure to notify a party of the time-limit within which in any application for leave to appeal could be lodged and the failure to provide appeal forms simply invalidates the notification of the determination. Mr Dent did not dissent. In a non-asylum case 0 v Immigration Officer, Heathrow [1992] Imm AR 584), the High Court quashed the Tribunal decision that an error of a clerk in inserting a time-Iimit of 42 days instead of 14 days did not extend the period of 14 days applicable to the case for lodging an application for leave to appeal (see TH 43862). The Tribunal determination was quashed by consent on the basis not that the period was extended but that the error in the notice invalidated the promulgation of the decision. If an error of a clerk in specifying the wrong time-limit invalidates the notice the failure to provide any indication of the time-limit or to include copies of application forms containing details of procedure necessarily (and rightly) leads to invalidation of a notification. So in this or any other Re case an application for leave to appeal made outside the time-limit which would apply had the notification been valid would not be invalid as out of time. The question is therefore whether the decision is appealable.

The appeal to the Tribunal from an adjudicator

Mr Dent did not argue in terms that there was no such appeal but did query whether the decision was a 'determination'. Because of the wording of statutory and rule provisions that issue is arguably relevant to the question of appealability. The appeal in this case is brought under s 8(4) of the Asylum and Immigration Appeal Act 1993. Whether or not there is a right of appeal to the Tribunal cannot depend in our view entirely or even fundamentally on the construction of the Procedure Rules. It depends essentially upon the statutory process set out in the Immigration Act 1993 and those provisions of the Immigration Act 1971 adapted by the 1993 Act. As is well known, the 1996 Act provides that decisions of adjudicators in cases falling within specific categories do not found a right of appeal to the Tribunal. There is however no such statutory provision relating to an appeal from a decision by an adjudicator that an appeal has been abandoned. Subject to express restrictions the Tribunal's jurisdiction is set out in s 20 of the Immigration Act 1971, this provision being applied to appeals under the 1993 and 1996 Act, (subject again to express restrictions) by Sch 2, para 4(2) to the 1993 Act. Section 20(1) reads:

'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 judicial task of the adjudicator is set out in s 19(1) of the 1971 Act, this being similarly applied to the 1993 Act. So far as relevant s 19(1) reads:

'...an adjudicator on an appeal to him under this Part of this 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.'

The Procedure Rules are made under s 22. So far as relevant this 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 of the Appeal Tribunal.

(2)Rules of procedure may include provision -

...

(c)conferring on adjudicators or the Tribunal such ancillary powers as the Secretary of State thinks necessary for the purposes of the exercise of their functions.'

As in the case of most, if not all, judicial bodies the adjudicator and Tribunal have power to decide their own jurisdiction, ie to decide whether there is an appeal before them. Such jurisdiction is well-established and without it there would be a fair amount of judicial chaos stemming from the need to refer any jurisdictional matter to a superior body. That there is such a jurisdiction is demonstrated not only from the very nature of the appellate authorities and the need for them to construe the boundaries of the statutory jurisdiction conferred upon them, but also from procedure rules referring to preliminary issues. (See, for example, Immigration Appeals (Procedure) Rules 1984, r 8(3); Asylum Appeals (Procedure) Rules 1996, r 23).

'Abandonment' as a jurisdictional issue

Whether under the statutes or the Procedure Rules an appeal lies is a matter for the adjudicator and, in a case in which the Tribunal has jurisdiction, the Tribunal. In our view whether an appeal has been abandoned is simply one aspect of the judicial power to decide whether there is an appeal in being. It is no different in concept than, for example, whether an appeal has been lodged in time, whether the appeal fits within one of the categories specified by statute or whether the appeal has been terminated. Just as whether an appeal has been withdrawn is a matter for the adjudicator (see for example Rahman (Alikur) v Immigration Appeal Tribunal, Secretary of State for the Home Department, Chief Adjudicator [1995] Imm AR 372; Ajuebor (11437)) so abandonment is also a matter to be judicially decided. If the adjudicator decides the matter is abandoned then under s 19 there is an obligation to dismiss the appeal for that reason - just as the appeal would be dismissed if it did not fit within the statutory process or the notice had not been lodged in time. Such a dismissal will be 'determination' of the appeal within the meaning of s 20 of the 1971 Act. Setting aside for the moment statutory 'pending' appeal provisions relating to withdrawal and abandonment on departure from the country, it follows from ss 19 and 20 that, unless specifically excluded, there is a right of appeal to the Tribunal from any 'determination' of an adjudicator whatever the reason for that determination. That 'determination' is the substantive decision ending the appeal process as distinct from any ruling during the appeal process (cf eg R v Immigration Appeal Tribunal ex parte Nazareli Kassam Lila and Another [1978] Imm AR 50 with Marspan Tusin v Secretary of State for the Home Department [1984] Imm AR 42). The appeal process is ended for an appellant just as effectively by deciding that the appeal has not been lodged or has been withdrawn or abandoned as if it is decided on the merits - in a sense more so for there is no opportunity to put the case. An appeal is in existence (ie 'pending') (for the purpose, for example, of prohibiting an appellant's removal from this country) once the notice of appeal is duly given until the appeal is finally determined, withdrawn or is 'abandoned by reason of the appellant leaving the United Kingdom' (see the Immigration Act 1971, s 33(4), as amended by the Asylum and Immigration Appeals Act 1993, s 9(5), the Asylum and Immigration Act 1996, Sch 2, Para 4(2), and as adapted to asylum appeals by the 1993 Act, Sch 2, paras 7 to 9). The separation in this context between 'finally determined', withdrawal and abandonment on leaving the country in our view goes not to appellate jurisdiction but at most to specifying statutorily acts of termination of the appeal. We add only that even if the pending appeal provisions were to be taken in some way to restrict Tribunal jurisdiction this could not apply to abandonment save that based on leaving the country. We conclude therefore that, subject to leave, there is by statute a right of appeal to the Tribunal from any decision by an adjudicator that an appeal has been abandoned and indeed any decision based on the application of any part of r 35.

The effect of r 35(5)

(i)On the wording of r 35(4), (5)

Any argument that the rule purports to prohibit an appeal to the Tribunal must be dependent either on the lack of necessity of a written notice of determination or (a matter not raised at the hearing) the limitation of the application of the rule to the special adjudicator.

(a)The option not to send a written notice of determination

The rule requires an adjudicator to determine the appeal and to send a written notice of decision. The sending of such a notice is by r 2(3)(a) the determination of the appeal. In these circumstances the option not to send a written notice of determination (whatever that means) could not possibly be construed as in some way removing a step in the appellate process so as to make it end at adjudicator level.

(b)The lack of Tribunal power to apply r 35(4)

It is arguable that the confining of the procedural power to the adjudicator is contrary to the provision of s 20 that the Tribunal may make any determination which could have been made by the adjudicator. However, assuming that this does not equate the 'original' powers of the Tribunal with the powers of the adjudicator, it clearly provides that the Tribunal is empowered to make a determination affirming or disagreeing with that of the adjudicator. The fact that the Tribunal itself cannot apply the rule is a factor which will come into play only where the adjudicator has applied the rule and the Tribunal disagrees with the approach in such a way that the matter has to be reconsidered. In those circumstances the case must be remitted, but that consequence can hardly be used as an argument that no right of appeal exists. Any argument that because a procedural rule may only be applied by an adjudicator there is no appeal to the Tribunal would be to confuse original and appellate jurisdiction. That the argument has no substance is demonstrated not only by the exercise of Tribunal jurisdiction in respect of r 12 of the Procedure Rules 1984 and more fundamentally by the perceived need for the statutory limitations on Tribunal jurisdiction in the 1993 and 1996 Acts.

(ii)As a rule of procedure made under s 22 of the 1971 Act

Even if r 35 was capable of being construed as prohibiting a right of appeal to the Tribunal in our view it could not override the Immigration Act 1971. The statutory foundation for the rules (s 22) does not include any authorisation for limiting the ambit of ss 19 and 20 - to limit an appeal to a Tribunal could not arguably be said to be 'regulating' the exercise of rights of appeal, to be a matter incidental, preliminary or ancillary to the statutory appeal, or a matter simply of practice or procedure. We conclude therefore that there is a right of appeal to the Tribunal from a decision taken under r 3 5 (4), (5). We turn to the requirements of r 3 5 (5).

The written notice of decision

As we have said the statutory duty of the adjudicator is to determine the appeal. As a matter of sensible procedure a rule made under s 22 of the 1971 Act may confer on an adjudicator the power to determine an appeal without considering the merits where the question is whether an appeal exists (as, for example, do the rules relating to preliminary issues). It follows from the approach we have set out in considering the right of appeal to the Tribunal that a rule of procedure may provide that an adjudicator determine (ie dismiss) the appeal solely on the basis that an appeal does not exist. That may be because it has never started or (as with abandonment) it has been terminated. The purpose of r 35(5) is in our view to provide a procedure for determination on the grounds specified in r 35(4) without any consideration of the merits of the appeal. We approach the by no means simple task of construction on that basis. By a combination of r 2(3)(a) and r 35(5) an appeal to which r 35(4) is applied is determined on the sending of the written notice apply the rule. By virtue of r 2(3)(a), (b) the written notice under r 35(5) is a 'determination' and must consist of the decision on the substantial issue raised (in this context the abandonment) material findings of fact and the reasons for the decision. The lack of necessity of a written notice of determination is therefore simply a provision that there need be no written notice save that of the decision applying the rule. Neither that eminently sensible provision nor the express requirement of specification in the notice of the ground of r 35(4) on which reliance is placed can possibly be read as authorising an adjudicator not to give the factual foundation and the reason for applying the rule. To us this conclusion is underlined by the application of r 2(3) to r 35 and the use of the phrase (not appearing in r 2(3)) 'written notice of determination'. Save where abandonment is asserted because of departure from the country, where abandonment is considered the adjudicator must consider all the relevant circumstances. Where departure is established by virtue of s 33(4) of the 1971 Act (as amended) there is no pending appeal and there are no other circumstances to be considered. The notice of decision must reflect the consideration of the appropriate elements and should indicate that it is a determination. The notice issued by the adjudicator in this case gives no information as to why the adjudicator was satisfied that the appeal had been abandoned. That is wholly unsatisfactory in practice and as appears from our reasons the unrevealing nature of the notice cannot be said to be the necessary or permissible consequence of r 35. The adjudicator therefore erred in law.

The consequences of our findings in this case

As the adjudicator erred in law and the Tribunal cannot apply r 35(4) the matter must be remitted unless the Tribunal were to exercise its powers to consider the substantive appeal in the absence of the appellant or without a hearing under rr 33(1) and 35(l). In our view it would be unsafe so to do without the opportunity for further representation. There is on file a medical certificate which arguably could explain the absence of the appellant from the hearing before the adjudicator and it seems to us that in the circumstances of this case it would be preferable for the matter to return to an adjudicator. It will then be open to that adjudicator to consider, if appropriate, whether r 35 applies and to do so in accordance with the principles set out in this determination. Mr Dent did not seek to argue otherwise.

Summary

In sum our conclusions are: (1)A decision under r 35(5) that r 35(4) applies is a determination which is appealable to the Tribunal under s 20 of the Immigration Act 1971, whether or not the Tribunal itself may apply r 35(4). (2)The notice of decision must contain the elements specified in r 35(5), and by virtue of r 2(3) the findings of fact relevant to the decision why r 35(4) applies and the reasons for that decision. (3)There is no requirement for an adjudicator to consider the merits of an appeal held to be within r 35(4). (4)Any notification of a determination that r 35(4) applies which is and has been promulgated without any indication of the period within which leave to appeal must be sought is invalid. The appeal is allowed insofar as the matter is remitted to an adjudicator other than Mr B. Watkins for consideration de novo (including consideration if thought appropriate of summary determination). Appeal allowed Matter remitted to another special adjudicator for hearing de novo. Solicitors: Omade Associates (Legal Consultants) for the appellant