Mehta (BKD) v. Immigration Appeal Tribunal

MEHTA (BKD) v IMMIGRATION APPEAL TRIBUNAL, TH/2827/76

Court of Appeal (Civil Division)

[1979-80] Imm AR 16

Hearing Date: 11 April 1979

11 April 1979

Index Terms:

Appeal -- Leave to appeal to Tribunal -- Application to Tribunal for leave to appeal -- Oral hearing -- "Special circumstances" which could "render a hearing desirable" -- No request for an oral hearing -- No "special circumstances" included in grounds of appeal -- "Special circumstances" to be relevant to grounds on which appeal is sought to be based -- Whether Tribunal erred in law in not deciding there should be an oral hearing of the application -- Immigration Appeals (Procedure) Rules 1972, (SI 1972 No 1684), r 16(5).

Held:

If on an application to the Tribunal for leave to appeal against the decision of an adjudicator an appellant wished to have an oral hearing of his application, it was incumbent on him to request an oral hearing and in his grounds of appeal to set out "special circumstances" for his request, and those circumstances must be circumstances relevant to some ground on which the appeal was sought to be based (p 19, post). The Court of Appeal so held on a consideration of r 16(5) n1 of the Immigration Appeals (Procedure) Rules 1972. n1 Rule 16(5) is set out on p 18, post.

Introduction:

The facts in this appeal by a Commonwealth citizen who was the subject of a notice of intended deportation for overstaying his limited leave to be in this country are set out below in the judgment of BRIDGE LJ.

Counsel:

K. S. Nathan for the appellant. Harry Woolf for the respondent. PANEL: Megaw, Bridge, Shaw, LJJ

Judgment One:

BRIDGE LJ: delivering the first judgment at the invitation of MEGAW LJ: This is an appeal from a judgment of the Divisional Court given on 13 February 1978, refusing an application by the appellant for an order of certiorari to bring up and quash a decision of the President of the Immigration Appeal Tribunal dated 16 June 1976, whereby the President refused the appellant's application for leave to appeal against the decision of an adjudicator under the Immigration Act 1971, that decision being dated 7 May 1976, and being a decision to dismiss an appeal under s 15 of the statute against notice which had been served on the appellant by the Secretary of State of the Secretary of State's intention to make a deportation order against the appellant. The facts, so far as relevant to any issue raised in this appeal, can be extremely shortly stated. The appellant is a young man, born in 1952, who is a Commonwealth citizen and hails from Tanzania. Having obtained an entry certificate from the High Commission in Uganda, he entered this country as a student on 16 August 1971, with permission to remain for three months only. Subsequently there were granted a number of extensions to the period of his permitted stay in the United Kingdom, the last of which expired, at the latest, on 13 April 1974. Ever since that date the appellant has been a person liable to deportation under s 3(5)(a) of the statute, which, it will be remembered, provides:

"A person who is not patrial shall be liable to deportation from the United Kingdom -- (a) if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave..."

Subsequently to the date when his permitted stay expired, a number of applications for the grant of an extended period of permission to stay have been made by or on behalf of the appellant to the Home Office, and all of them have in due course been refused. Following those refusals there have been a number of purported appeals to an adjudicator under s 14 of the Immigration Act 1971. The last application for an extension of stay was made on 20 November 1975, and was refused by the Secretary of State on 6 February 1976. On that same date the Secretary of State gave the notice of intention to make a deportation order against the appellant which is the subject of these proceedings. Following those two decisions on 6 February 1976, there were two appeals under the appellate machinery in Part II of the Act. First, there was an appeal, under s 15, against the Secretary of State's notice of intention to make a deportation order. That was, of course, a perfectly valid and proper appeal which the adjudicator was bound to entertain pursuant to s 15(1)(a) of the statute. The other purported appeal was against the refusal to vary the appellant's conditions of stay; and that, in the light, first, of the decision of this Court in ex p Subramaniam n2 and, secondly, of the later decision of the House of Lords in Suthendran v Immigration Appeal Tribunal n3, was not a valid appeal because it is now clear law that under s 14 there is no jurisdiction in an adjudicator to entertain an appeal against a variation of, or refusal to vary, the conditions or duration of an immigrant's permitted stay in this country unless the decision varying or refusing to vary was itself given at a time when the would-be appellant was still in this country with permission pursuant to leave previously granted to him. n2 R v Immigration Appeal Tribunal, ex p Subramaniam, [1976] Imm A R, 155; [1977] 1QB 190. n3 [1977] Imm A R 44; [1977] AC 359. n4 In consequence of the hardship to would-be appellants which might result from the decision of the Court of Appeal in Subramaniam on the application of s 14(1) of the Act, the Immigration (Variation of Leave) Order 1976 (S.I. 1976 No 1572) was made, and it came into operation on 27.9.76. [1979-80] Imm AR 16 This state of the law was not appreciated at the time when the two appeals came to be dealt with. Both were heard by an adjudicator, Sir John Pestell, who dealt with the whole matter fully on the merits under both heads and dismissed both the appeals. An application was then made to the adjudicator himself to grant leave to appeal to the Immigration Appeal Tribunal. That was refused on 11 May 1976. Thereupon the appellant renewed his application for leave to appeal to the President of the Immigration Appeal Tribunal, who refused the application on 16 June 1976. Now, as I understand it, the sole matter of which complaint is made, and the sole ground on which it was contended before the Divisional Court, and has been contended before this Court, that the President of the Immigration Appeal Tribunal erred in such a way that his decision should be quashed by certiorari, is the submission that he ought not to have decided the application for leave to appeal without an oral hearing. The relevant rule upon which that submission depends is r 16(5) of the Immigration Appeals (Procedure) Rules 1972, which provides:

"An application for leave to appeal shall be disposed of without a hearing unless the adjudicator or, as the case may be, the Tribunal to whom the application is made considers that special circumstances render a hearing desirable."

The decision of Sir Derek Hilton, the President of the Immigration Appeal Tribunal, refusing to grant leave to appeal, dated 16 June 1976, is in a document before us. The document sets out the grounds on which leave to appeal was sought. The first of those grounds reads as follows:

"That the learned adjudicator erred and misdirected himself in law in holding that the respondent could make the decision to deport under s 3(5)(a) before having given the appellant an opportunity of exhausting his remedy of appealing against refusal to vary conditions of entry under s 14(1) of the Immigration Act 1971. The case of Islam ([1975] Imm. A.R. 106) did not cover this point nor was argument addressed to the Tribunal on it."

It should be observed that these grounds of appeal must have been settled before the decision of the Court of Appeal was given in the case of Subramaniam. In the light of the decision in Subramaniam, and a fortiori of the later decision of the House of Lords in Suthendran, that first ground of appeal was manifestly unarguable. The second ground was in the following terms:

"That the learned adjudicator rightly concluded that the case of The Queen v Immigration Appeal Tribunal, ex p Subramaniam (1976) 1 All ER 915" (and that, I observe, is a reference to the decision of that case in the Divisional Court) "gave the respondent powers to deport the appellant. This case is now awaiting to be heard by the Court of Appeal and further action on this case should be suspended until the outcome of that appeal."

In fact by the time the application for leave to appeal against the adjudicator's decision reached Sir Derek Hilton the Court of Appeal decision had been given and was available for the President's consideration; so that that ground simply disappeared. [1979-80] Imm AR 16 Accordingly, the only remaining ground on which leave to appeal was sought was the third, which is in these cryptic terms:

"That the learned adjudicator wrongly concluded the principle in the case of Subramaniam."

The President of the Tribunal goes on to set out the reasons for his decision as follows: "As a result of the judgment of the Court of Appeal in the case of R v Immigration Appeal Tribunal, ex p Subramaniam on 27 May last the appellant does not appear to have any right of appeal against the refusal to vary his leave to enter dated 6 February 1976, having withdrawn his appeal on 20 November 1975, against a previous notice of refusal to vary his leave to enter dated 15 April 1975". That is a conclusion with which nobody could, and Mr Nathan has not sought to, quarrel. Then the decision goes on:

"As to the decision to make a deportation order against the appellant, the Tribunal has considered all the evidence and is of opinion that that decision was justified, being in accordance with the law and the immigration rules applicable and that discretion should not have been exercised differently. No arguable point of law is before the Tribunal and in its opinion there are no other circumstances which would merit the granting of leave to appeal."

It is to be observed that in arriving at that decision the learned President of the Immigration Appeal Tribunal had never been requested by or on behalf of the appellant to grant an oral hearing. In my judgment that in itself is quite fatal to this appeal. How can it be said (one asks rhetorically) that a judicial tribunal in failing to take a course which it has never been requested to take on behalf of the party who is making complaint has erred in law? If there were "special circumstances" which could lead the President to consider it desirable that there should be an oral hearing, it must have been for the applicant for leave to appeal against the decision of the adjudicator to draw those circumstances to the attention of the President of the Tribunal and to indicate why they rendered an oral hearing desirable. That is one ground on which I would dismiss this appeal. But the second, and equally fatal, ground is that special circumstances which are to render desirable the oral hearing of an appeal from an adjudicator's decision to the Immigration Appeal Tribunal must clearly be circumstances which are relevant to some ground on which the appeal is sought to be based. The only ground to which any special circumstances could have been relevant here would have been ground (3), and that ground is really quite meaningless: it says nothing -- "That the learned adjudicator wrongly concluded the principle in the case of Subramaniam". No one could possibly conclude from the wording of that ground that it was in fact desired to reopen the whole case upon the merits. That is the case which Mr Nathan has struggled to make before us to-day. He has struggled to say that if one were to look at the whole case upon the merits afresh one would find something in the merits of the case which constituted "special circumstances" making an oral hearing of an application for leave to appeal desirable. In fact, having read the decision of the adjudicator, it is perfectly clear that the whole case was fully considered upon the merits; and, [1979-80] Imm AR 16 as the passage from the decision of the President refusing leave to appeal also indicates, he considered the case on the merits, considered all the evidence, and concluded that the adjudicator's decision was the right one. It seems to me that this appeal is really quite unarguable; and I would dismiss it.

Judgment Two:

SHAW LJ: Despite all Mr Nathan's forensic exertions on behalf of the appellant, he has entirely failed to point to any failure in procedure or error in law which might have affected the determination of the President of the Immigration Appeal Tribunal in any way. For the reasons given by BRIDGE LJ in his judgment, I too would dismiss this appeal.

Judgment Three:

MEGAW LJ: I agree. Mr Woolf: My Lord, in those circumstances could the appeal be dismissed? I am not instructed to ask for costs. MEGAW LJ: So be it.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Nazerali Suchak & Co; Treasury Solicitor.