Mehta v. Secretary of State for the Home Department

Mehta v Secretary of State for the Home Department

COURT OF APPEAL, CIVIL DIVISION

[1975] 2 All ER 1084, [1975] 1 WLR 1087, 139 JP 680

Hearing Date: 15, 16 MAY 1975

16 MAY 1975

Index Terms:

Immigration - Appeal - Time limit for appealing - Notice not given within limitation period - Discretion of adjudicator or tribunal to allow appeal to proceed - Discretion where by reason of special circumstances just and right to do so - Matters constituting 'special circumstances' - Merits of case - Mistake on part of appellant's legal advisers - Immigration Appeals (Procedure) Rules 1972 (SI 1972 No 1684), r 11(4).

Held:

The applicant, a Tanzanian who was subject to immigration control under the Immigration Act 1971, had been given leave to enter the United Kingdom for a period of 12 months as a student. She applied to the immigration appeal tribunal for an extension of that period. The application was refused on 5th November 1973 because the tribunal were not satisfied that she was still a student; but the Home Office representative indicated to her sholicitors that a further application to extend the period of her stay, supported by the necessary information, would be sympathetically received. Thereupon her solicitors wrote two letters, dated 12th and 27th November 1973, to the Home Office giving information that the applicant was in receipt of a regular income from Tanzania and had enrolled as a full-time student at a technical college. The letter of 27th November was in terms a fresh application for variation of the applicant's conditions of entry to enable her to remain in the United Kingdom as a full-time student. By a mistake both those letters were overlooked in the Home Office, and on 4th December 1973 the Home Office informed the solicitors that the applicant had no claim to remain in the United Kingdom and must leave within 14 days. Later the Home Office discovered the November letters, and by letter dated 2nd January 1974 they wrote to the solicitors stating that the application contained in the letter of 27th November had been refused. On 8th January 1974 the solicitors again wrote to the Home Office acknowledging the refusal contained in the letter of 2nd January but reminding the Home Office of their previous indication to treat sympathetically a further application by the applicant and reminding them also of the information regarding the applicant given in the November letters; the letter concluded by stating that although it was realised that the decision of the Home Office could not be revoked and the solicitors would probably have to lodge an appeal on behalf of the applicant, the Home Office were invited to reconsider the matter. By another oversight the Home Office did not reply to that letter. The solicitors mistakenly waited for a reply to the letter of 8th January before lodging notice of appeal against the refusal of 2nd January, and did not lodge notice of appeal until 23rd January 1974. The Home Office contended that the appeal was out of time since it had not been lodged within 14 days of 2nd January in accordance with r 4(5) of the Immigration Appeals (Procedure) Rules 1972 a. The applicant appealed to an adjudicator against the refusal of 2nd January contending that, even if the appeal was out of time, yet under r 11(4) b of the 1972 rules by reason of 'special circumstances' it was 'just and right' to allow the appeal to proceed. The adjudicator held that in exercising his discretion under r 11(4) to allow an appeal to proceed notwithstanding that it was out of time, only special circumstances preventing the applicant or her solicitors from giving notice within the permitted period could be taken into account, and no account could be taken of the merits of the substantive appeal; he further held that the solicitors' failure to lodge notice of appeal while waiting for a reply to their letter of 8th January was not such a special circumstance; accordingly the adjudictor determined as a preliminary issue that the appeal was barred by time. The tribunal, on appeal from the adjudicator, gave a decision which affirmed the adjudicator's decision. The applicant applied for certiorari to quash the tribunnal's decision. a S I 1972 No 1684 b Rule 11(4), so far as material, provides: 'Where the respondent to an appeal [alleges that the notice of appeal was not given within the period permitted by r 4] and the appellate authority [i e an adjudicator or the tribunal] determines, as a preliminary issue that the notice of appeal was not given within the period permitted by Rule 4... the appellate authority shall not be required to dismiss the appeal but may allow it to proceed if the authority is of the opinion that, by reason of special circumstances, it is just and right so to do; and, in such case, the notice of appeal shall be treated for all purposes as if it had been given in accordance with Rule 4.' Held - The duty of an adjudicator or a tribunal under r 11(4) was not limited solely to enquiring whether there were special circumstances which prevented giving notice of appeal within the permitted period; they had a wider discretion to do what was just and right to prevent an appellant from suffering unfairly, and r 11(4) should be liberally interpreted. Accordingly, the substantive merits of the case, and the fact that failure to give notice in time was due to the mistake of the applicant's solicitors, were 'special circumstances' which the adjudicator or tribunal was entitled to take into account in determing whether it was just and right to allow the appeal to proceed. The tribunal's refusal to take into account the merits of the applicant's case or to treat as a 'special circumstance' the mistake of the solicitors in omitting to lodge notice of appeal in time, were errors of law on the face of the record and certiorari would issue to quash the tribunal's decision (see p 1088 c to e and h and p 1089 a c e to g and j, post). Dedman v British Building and Engineering Appliances Ltd [1974] 1 All ER 520 distinguished.

Notes:

For procedure on appeal to an adjudicator or tribunal at first instance, see 4 Halsbury's Laws (4th Edn) 513-515, para 1024. For the Immigration Appeals (Procedure) Rules 1972, rr 4, 11, see 2 Halsbury's Statutory Instruments (3rd Reissue) 34, 39.

Cases referred to in the Judgment:

Dedman v British Building and Engineering Appliances Ltd [1974] 1 All ER 520, [1974] 1 WLR 171, CA. Gatti v Shoosmith [1939] 3 All ER 916, [1939] Ch 841, 108 LJCh 380, 161 LT 208, CA, 51 Digest (Repl) 806, 3631. R v Preston Supplementary Benefits Appeal Tribunal, ex parte Moore [1975] 2 All ER 807, [1975] 1 WLR 624, CA.

Cases cited in the Judgment:

Brutus v Cozens [1972] 2 All ER 1297, [1973] AC 854, HL. Howard v Secretary of State for the Environment [1974] 1 All ER 644, [1974] 2 WLR 459, CA. Ratnam v Cumarasamy [1964] 3 All ER 933, [1965] 1 WLR 8, PC.

Introduction:

Appeal. The applicant, Rashila Prataprai Mehta ('Miss Mehta') with leave of the Court of Appeal, applied to the court for an order of certiorari to quash the determination of the immigration appeal tribunal made on 10th December 1974 whereby, on a preliminary issue, it was held that notice of appeal against the refusal of the Secretary of State for the Home Department to vary Miss Mehta's leave to enter or remain in the United Kingdom had been given out of time; and for an order of mandamus directing the tribunal to allow the substantive appeal to proceed under r 11(4) of the Immigration Appeals (Procedure) Rules 1972. The facts are set out in the judgment of Lord Denning MR.

Counsel:

K S Nathan for Miss Mehta. Harry Woolf for the Secretary of State. PANEL: LORD DENNING MR, BROWNE AND GEOFFREY LANE LJJ

Judgment One:

LORD DENNING MR. Miss Rashila Prataprai Mehta is a young lady from Tanzania. In August 1970 she was aged about 18.She went to the High Commissioner at Dar-es-Salaam and got an entry certificate to come to this country as a student. She was given leave to come for a period of 12 months. She came here and went to a technical college. She wanted to get her 'A' levels. Before the year expired, she applied for an extension of time. She was given a short extension, for one month. She applied for a further extension. It was refused and she appealed to an adjudicator. her appeal succeeded on a technical ground. But the Home Office appealed to the tribunal, who allowed the appeal and refused her an extension. That was on 5th November 1973. But the Home Office representative indicated to her solicitor that a further application would be sympathetically received. Thereupon her solicitors wrote two very reasonable letters to the Home Office applying for an extension, one dated 12th November 1973, the other 27th November 1973. They pointed out that she was in receipt of a regular monthly allowance from Tanzania and she had enrolled as a student at a college at Harrow and had paid this tuition fee. They sent her passport, but asked for it back in time for her to visit relatives in India over Christmas. By some mistake or other, those two letters of 12th and 27th November were overlooked in the Home Office. Someone in the Home Office wrote a short letter to the solicitor on 4th December 1973 saying that they had had no further communication from them and that she had no claim to remain in the United Kingdom. The writer from the Home Office added: 'I must request that she leaves the United Kingdom within fourteen days.' Her solicitors were flabbergated. They had written two letters. They had received no reply. Yet here was a letter telling her to go in 14 days. Her solicitors wrote and said they were flabbergasted. Eventually on 2nd January 1974 the Home Office discovered the earlier letters and wrote this curt reply:

'I wish to apologize for our letter of 4 December, which was sent due to a clerical error. The application of 27 November has been refused...'

So there it was. The Home Office refused the application without giving any reasons. Just a blank refusal. The solicitors wrote again quite a reasonable letter on 8th January 1974. They reminded the Home Office that they had said that her application would be sympathetically received. They reminded them of her incomefrom Tanzania and that she was studying at the Harrow Technical College. They finished the letter with this paragraph:

'We realise that having made a decision this cannot be revoked, and that we would probably have to lodge an Appeal on behalf of our client. However, in case there is any opportunity for reconsideration on this point, we would invite you to do so.'

The solicitors had 14 days to appeal from the Home Office decision. I should have thought they might quite reasonably expect a reply before they lodged an appeal. But the Home Office did not reply to the letter of 8th January 1974 at all. This was another oversight. I suppose her solicitors ought to have countered that oversight by lodging an appeal within the 14 days; but unfortunately they did not. They waited for a reply and it did not come. So they felt that they must lodge an appeal. And they did so on 23rd January 1974, and followed it up by a telephone message on 25th January 1974. Only to find that the Home Office contended that the appeal was out of time because it ought to have been lodged within 14 days from 2nd January and it had not been done. Before the adjudicator the Home Office took as a preliminary point that she was out of time. Her lawyers asked that the case should proceed. They relied on r 11(4) of the Immigration Appeals (Procedure) Rules 1972 n1, which says: n1 SI 1972 No 1684

'... the appellate authority shall not be required to dismiss the appeal but may allow it to proceed if the authority is of the opinion that, by reason of special circumstances, it is just and right so to do...'

Miss Mehta's advisers asked that that provision should be applied in her favour, but the adjudicator refused, giving his reasons in these words:

'The question that remains is whether the facts in this case amount to special circumstances making it just and right to allow the appeal to proceed. I do not think that I can take account of whatever merits there may be in the substantive appeal.I think that I should be concerned only with any special circumstances that prevented [Miss Mehta] or her representative from giving notice of appeal within the permitted period.No such circumstances, it seems to me, exist in this case.Instead of lodging an appeal the solicitors made a last attempt to persuade the Home Office to reconsider their decision. There was absolutely nothing to prevent the solicitors' appealing while continuing to make representations to the Home Office during the period before hearing.'

So the adjudicator held that she was barred by time. She appealed to the immigration appeal tribunal. They affirmed the decision of the adjudicator, saying:

'In a case such as this we have no doubt that the Tribunal's task is to come to a decision on the preliminary issue only without regard to the substance or merits of [Miss Mehta's] appeal. We cannot accept that the last paragraph of the letter of 8 January from [Miss Mehta's] solicitors amounted to notice of appeal nor that it was reasonable to expect a reply from the Home Office within the limited time available. We entirely agree with the conclusions reached by the Adjudicator...'

Miss Mehta's advisers applied to the Divisional Court for an order of certiorari. The Divisional Court refused leave. But counsel for Miss Mehta renewed his application before us and we decided to hear it argued on both sides. It seems to me that both the adjudicator and the tribunal fell into error. They erred in point of law. They misinterpreted the rule. They thought that their sole duty was to enquire whether 'there were any special circumstances preventing' the applicant from giving notice of appeal within the permitted period. That interpretation would make the rule very similar to the rule in the industrial relations cases where the regulations n1 make it necessary to make a complaint in four weeks unless 'in the circumstances it was not practicable for the complaint to be presented before the end of that period'; see Dedman v British Building and Engineering Appliances Ltd n2. n1 Industrial Tribunals (Industrial Relations etc) Regulations 1972 (SI 1972 No 38), Sch, r 2(1) n2 [1974] 1 All ER 520, [1974] 1 WLR 171 In my opinion that rule gives the adjudicator and the tribunal a wider discretion than does the industrial relations regulation. Under r 11 of the 1972 rules the appellate authority may 'allow it to proceed if the authority is of the opinion that, by reason of special circumstances, it is just and right so to do'. One of the special circumstances here was the fact that the omission was the mistake of Miss Mehta's solicitors. It was said that the mistake of her solicitors could not amount to 'special circumstances' within r 11. I do not agree. In applying r 11, I should have thought that the appellate authority might well adopt the practice which we adopt in this Court of Appeal here. We are often asked to extend the time for giving notice of appeal. We never let a party suffer because his solicitors make a mistake and are a day or two late in giving notice of appeal. We always treat it as a ground for extending the time: see Gatti v Shoosmith n3. All the more so in a case like the present where Miss Mehta would have no remedy against her solicitor for any negligence. If she is out of time for appeal, she will be removed from this country and it would be of no consolation to her to say that she has a remedy against her solicitor. n3 [1939] 3 All ER 916, [1939] Ch 841 In addition, the mistake of the solicitors here was a most understandable mistake. They wrote a very reasonable letter of 8th January inviting the Home Office to reconsider their decision. The Home Office did not reply. This failure of the Home Office put the solicitors off their guard. They were waiting for a reply which never came. That is another special circumstance which can be taken into account to see whether it is just and right to allow the matter to proceed. One other point. The tribunal said they must come to a consideration on the preliminary point without regard to the substance or merits of the applicant's appeal. That also is too strict a view. Here again I think the appellate authority might well follow the practice in this court. We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time. In short, the rule gives the tribunal a discretion to do what is just and right. It should be liberally interpreted by them so as not to let an appellant suffer unfairly. This seems to me to be a case where the tribunal have erred in point of law and it is a case for certiorari to issue. Counsel for the Secretary of State referred to R v Preston Supplementary Benefits Appeal Tribunal, ex parte Moore n1 where we said: 'Individual cases of particular application must be left to the tribunals.' But this case raises a point of general application. It is just one of those cases where the court should give such guidance as it can to the tribunal. I think the tribunal did take too strict and indeed an erroneous view of the wording of the rule. I would therefore allow the appeal and order certiorari to issue. n1 [1975] 2 All ER 807 at 813, [1975] 1 WLR 624 at 632

Judgment Two:

BROWNE LJ. I agree that this appeal should be allowed and certiorari go for the reasons given by Lord Denning MR. I only add a few words. The question here is: does it appear on the face of the decision of the tribunal that the tribunal went wrong in law in refusing in the exercise of its discretion under r 11(4) of the Immigration Appeals (Procedure) Rules 1972 to take into account something which they ought to have taken into account? Lord Denning MR has read the relevant part of the decision of the adjudicator, which was adopted by the tribunal; but I think I should read it again:

'I do not think that I can take account of whatever merits there may be in the substantive appeal. I think that I should be concerned only with any special circumstances that prevented [Miss Mehta] or her representative from giving notice of appeal within the permitted period.'

No doubt in most cases, and it may be in all cases, under r 11(4), this will be a factor to be taken into account by the adjudicator and the tribunal. I think the tribunal took too narrow a view and was wrong in law in holding that this was the only factor, and that they were not permitted to take into account any other factor. I am certainly not going to try to lay down any exhaustive list of what other factors can be taken into account and I am not laying down that in every case other factors must be taken into account. I am only saying that in my view there is no reason in law why the tribunal should not take into account the substantive merits of the case, or the fact that the failure to give notice in time was due to some mistake of the applicant's legal advisers, or the fact that the applicant had been lulled into a false sense of security. I think the tribunal is entitled to treat such matters -- and there may be others -- as making it just and right to treat the notice of appeal as having been given in time. But I emphasise that I am only saying that the tribunal is entitled to take into account such matters -- not that they should and still less that they must be taken into account in every case. I think r 5(3), of which the wording is identical, supports the view that the considerations which can be taken into account under r 11(4) are not to be so narrowly limited as the tribunal held. The problem under r 5(3) is a wider one than the problem under r 11(4), and it seems to me impossible to limit the relevant considerations under r 5(3) to special circumstances which prevented the applicant from giving notice within the permitted time. I agree, therefore, with Lord Denning MR that the appeal should be allowed and certiorari should go.

Judgment Three:

GEOFFREY LANE LJ. I agree.

DISPOSITION:

Appeal allowed; order of certiorari to quash the tribunal's decision.

SOLICITORS:

Michael Freeman & Co (for Miss Mehta); Treasury Solicitor.