Ashrafi v. Immigration Appeal Tribunal

Ashrafi v Immigration Appeal Tribunal (TH/42964/79)

Court of Appeal (Civil Division)

[1981] Imm AR 34

Hearing Date: 27 February 1981

27 February 1981

Index Terms:

Notice of Appeal - Time limit for appealing - Immigration Appeal Tribunal - Application "may" be made "not later than 14 days after" adjudicator's determination - Whether jurisdiction in Tribunal to grant leave to appeal to it out of time - Immigration Act 1971, s 20(1) - Immigration Appeals (Procedure) Rules 1972, (SI 1972 No 1684), rr14, 15(2) & (4)(a), 37(e), 38.

Held:

In the judgments reported below the Court of Appeal, affirming the decision of the Divisional Court and approving the latter's earlier decision in R v Immigration Appeal Tribunal, ex parte Armstrong ([1977] Imm. A.R. 80), held that the Tribunal had no power to grant an application for leave to appeal to it out of time from the determination of an adjudicator; the words of r 15(2) in Part III of the Immigration Appeals (Procedure) Rules 1972 (SI 1972 No 1684), stating that "applications to the Tribunal for leave to appeal...may be made or given not later than 14 days after the determination in question" conferred a privilege upon the would-be appellant and were to be constued as meaning that he might not apply later than those 14 days. Nor could failure to apply for leave within the prescribed period be regarded as an "irregularity" capable of cure by the Tribunal under either of rules 37(e) or 38 in Part IV n1 of the Procedure Rules. n1Rule 37(e) is set out on footnote 4. Rule 38 is set out on p 38. Per Donaldson LJ: The immigration appeals procedure was (so far as here material) a statutory two-page appeal system; and it was no doubt because different considerations applied on an appeal at the first stage (generally an appeal to an adjudicator) that the procedure for that stage was dealt with in a separate part of the Procedure Rules (SI 1972 No 1684), i.e. in Part I, in which there were express provisions enabling time to be extended and generally for 'tempering the wind to the shorn lamb' n2. No such considerations applied to a second-stage appeal and, consistently, that stage was dealt with the Part III of the Procedure Rules, and r 15 in that Part contained a strict time limit. (p 39). n2 See, for example, rr5, 8(3)(b) and 11(4) of the 1972 Procedure Rules The facts leading to the unsuccessful application to the Tribunal made by the applicant in this case (a Pakistan citizen in this country) for leave to appeal out of time from the determination of an adjudicator are set out in the judgment of Brandon LJ.

Counsel:

KS Nathan for the Appellants; S Brown for the Respondents.

PANEL:

Brandon, Donaldson and Ackner LJJ

Judgment One:

BRANDON LJ: This is an appeal by Mr Ashrafi against a Decision of the Divisional Court given on the 17th April 1978, refusing certain Orders for which he had asked in connection with appeals by him to the adjudicator and to the Immigration Appeal Tribunal. The Divisional Court took the view that it was bound by a previous decision of its own to refuse the relief asked for, and in those circumstances the Lord Chief Justice gave a very short Judgment and gave leave to appeal to this Court. The history of the matter is set out at considerable length in the documents which are contained in the bundle before us, but for the purposes of the point which falls to be determined by this Court, it is I think only necessary to refer to a few of those facts. The Appellant is a citizen of Pakistan, having been born on the 15th December 1953, so that he is a little over 27. On the 27th December 1975 he married a young woman in Pakistan who was then aged 16. I shall refer to that young woman in the rest of this Judgment as the wife. That marriage was celebrated in accordance with the law of Pakistan. The status of the wife was that she was not born in the United Kingdom, but held a British passport and was not subject to immigration control. After the marriage in Pakistan, there were efforts made to arrange for the Appellant to join his wife in England, to which she had returned after her marriage in Pakistan. The idea was that the wife should be the sponsor, but she seems to have vacillated in her enthusiams for the proposition that the Appellant should join her in England. There was a good deal of what I shall simply describe as "coming and going" on the matter. But ultimately the Appellant did come to England to join the wife as a result of sponsorship by her, and he arrived in this country on the 4th September 1977.He was met by the wife at the airport, and he was granted permission to remain in the United Kingdom for 12 months -- with no condition imposed prohibiting him from taking employment. Following his arrival in this country, on the 22nd December 1977, when the wife was just over 18, the Appellant and the wife were married according to English law at the Luton Registry Office. The husband then, acting through the Immigration Welfare Centre as his representative, applied to the Home Office to remove the time limit of 12 months upon his right to remain in the United Kingdom. After the Home Office had made various enquiries, particularly relating to the state of the marriage between the Appellant and the wife, the application was refused. On the 6th December 1978, the husband changed his representatives to the United Kingdom Immigration Advisory Service, and contended through them to the Home Office that the imposition of the 12-month limitation on his stay in the United Kingdom was a mistake. He was given, and exercised, his right to appeal to an adjudicator, and the appeal was heard by the adjudicator in Manchester on the 3rd December 1979. At that hearing or determination, neither the Appellant nor the wife was resent, but the Appellant was represented by the United Kingdom Immigration Advisory Service, who invited the adjudicator to dispose of the appeal upon the documentary evidence before him. The adjudicator acceded to that invitation and, having considered the documents before him, he dismissed the appeal. That was on the 13th December 1979. Unfortunately due to errors -- the details of which are not before us and which it is no part of our task to investigate -- the Appellant was not informed of that decision until February 1980. Upon receiving information of the decision, the Appellant immediately instructed Solicitors and they, on his behalf, applied to the Immigration Appeal Tribunal for leave for him to appeal from the adjudicator's decision out of time. I shall explain later why the application was out of time. The Immigration Appeal Tribunal declined to give leave to appeal out of time, basing themselves on the Rules which they said did not give them power to grant such leave, and also upon a decision of the Divisional Court -- R v The Immigration Appeal Tribunal (ex parte Armstrong) reported in (1977) Immigration Appeal Reports at page 80, in which it had been held that the Rules gave no such power. In his application to the Divisional Court -- which was made to the full Court after leave was given -- the relief sought by the Appellant was stated in these terms: "(i) An Order of Certiorari to remove into this Honourable Court and quash the determination of the adjudicator dated the 13th December 1979. (ii) An Order of Mandamus directed to the Immigration Appeal Tribunal to grant leave to appeal to the Applicant herein and to hear the appeal in accordance with the law". It has been conceded by Mr Nathan, who represents the Appellant before us, that the only relief for which he can properly ask, if the decision in Armstrong's case was wrong, is a declaration that the Immigration Appeal Tribunal had power to grant leave to appeal out of time, and an Order of Mandamus directing them to hear an application for such leave. In considering this case, it is with the possibility of that relief in mind, and that relief only, that I approach the matter. The Appellant's right to appeal from the adjudicator to the Immigration Appeal Tribunal is conferred on him by Section 20 sub-section (1) of the Immigration Act 1971. That provides: "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". It will be observed that that sub-section begins with the words: "Subject to any requirement of rules of procedure as to leave to appeal". Section 22 sub-section (1) provides: "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 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". Then there are various other provisions with regard to the making of rules of procedure to which I do not think I need refer. Pursuant to the rule-making power conferred by that Section, rules were made which are contained in the Immigration Appeals (Procedure) Rules 1972, Statutory Instrument of 1972 No. 1684. Rule 14 required the Appellant to apply for leave to appeal. Rule 15 sub-rule (2) reads as follows: "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". Then sub-rule (4) provides: "In this Rule any reference to a determination is a 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 (2) recording the determination". In the present case it is paragraph (a) of sub-rule (4) which applies because the decision of the Tribunal was pronounced at a hearing in the presence of the representative of the Appellant. The application for leave to appeal was not made until the 3rd March 1980, and it is not in dispute that it was a very long time out of time by reference to that period of 14 days prescribed by Rule 15 (2). If that Rule is mandatory, then it is clear that this application for leave to appeal out of time is an application which the Immigration Appeal Tribunal had no power to grant. Mr Nathan, on behalf of the Appellant, relied on two matters as showing that that requirement was not mandatory, as I understood his argument. First of all he said that the wording of Rule 15 sub-rule (2) is that an application for leave to appeal may be made not later than 14 days after its determination of the question, and that that is not inconsistent with it being made later. The sub-rule does not say "shall be made or given not later than 14 days after the determination of the question". In my judgment that argument cannot succeed. The right to apply for leave to appeal is a privilege conferred upon the would-be Appellant; it is a permission given to him and the word "may" is entirely appropriate to the giving of a permission to do an act. It seems to me that one must construe that sub-rule as meaning that he may apply for leave to appeal not later than 14 days after the determination of the question and he may not do so later -- that is to say, if one is looking at that sub-rule alone. Mr Nathan's second point was based on Rule 38 which clearly applies to appeals from an adjudicator to the Immigration Appeal Tribunal. That Rule provides: "Any irregularity resulting from failure to comply with these Rules before an appellate authority has reached its decision shall not by itself render the proceedings void, but the appellate authority may, and shall if it considers that any person may have been prejudiced, take such steps as it thinks fit before reaching its decision to cure the irregularity, whether by amendment or any other document, the giving of any notice or otherwise". It was contended my Mr Nathan on behalf of the Appellant that the failure to apply for leave within the prescribed period of 14 days was an irregularity within the meaning of that Rule and that that Rule conferred on the Immigration Appeal Tribunal power, if it considered that the Appellant was prejudiced, to take such steps as it might think fit before reaching its decision to cure the irregularity. And the steps which he suggested the Tribunal might think fit to take would be to extend the time for appeal. That was the very point argued in Armstrong's case (1977) Immigration Appeal Reports 80 before the Divisional Court to which I referred earlier. That Court came to the conclusion that a failure to apply for leave to appeal within the period of 14 days was not an irregularity within the meaning of Rule 38. In my judgment, that view was a correct view and I myself would interpret Rule 38 as not covering this kind of case at all. Mr Nathan also relied, thought not with any display of confidence, on Rule 37(e). I do not consider that this rule assists him either. We were referred to the provisions relating to appeals to the adjudicator and to the possibility of extension of time in the case of such appeals. I do not propose to refer to the relevant provisions because they do not arise in this case. I would only say this: The fact that, in relation to appeals to the adjudicator, there are express provisions enabling time to be extended, tends to strengthen the argument that these rules which I have been discussing are not intended to give any comparable power in the case of an appeal from the adjudicator to the Immigration Tribunal. It seems to me, therefore, that the decision of the Divisional Court in this case, following its earlier decision in Armstrong's case, was right, and that the appeal against that decision must be dismissed.

Judgment Two:

DONALDSON LJ: I agree. The appeals' procedure here is statutory; it is, so far as is material, a two-stage appeal system. Quite different considerations apply to the first stage, which involves an appeal to the adjudicator, and it is for that reason, no doubt, that it is dealt with in a separate part of the Immigration Appeals (Procedure) Rules of 1972. Part I deals with appeals to the adjudicator or to the Tribunal as a first stage appeal tribunal, and there are provisions enabling time to be extended and generally for tempering the wind to shorn lamb. No such considerations apply, of course, to a second stage appeal and consistently that stage is dealt with in a different part, Part III and, as I ead Rule 15, contains a strict time limit. I agree with all that my Lord has said about Rules 37 and 38 which appear in Part IV which are of general application. Neither of them assists Mr Nathan's client and I, too, would dismiss the appeal.

ACKNER LJ

Judgment Three:

ACKNER LJ: I also agree.

DISPOSITION:

Appeal dismissed. No order as to costs.

SOLICITORS:

AF and RW Tweedie, agents for Metcalfe Wright & Platt, Manchestern; The Treasury Solicitor.