Fuazia Wamar Din Bagga Khan v. Secretary of State for the Home Department; Deen v. Secretary of State for the Home Department

Court of Appeal (Civil Division)

 

[1987] Imm Ar 543

Hearing Date: 30 June 1987

30 June 1987

Index Terms:

Appeals -- procedure rules providing for written notice of withdrawal -- whether those provisions by implication exclude counsel when properly instructed from withdrawing an appeal orally at a hearing before the appellate authorities -- whether where an appeal is so withdrawn by counsel a deportation order signed thereafter is valid. Immigration Act 1971 ss 3(5)(a), 15(2), 33(4); HC 394 para 143: Immigration Appeals (Procedure), Rules 1972 rr 6(5)(a), 26(2), 34(1), 34(5).

Estoppel -- whether in the events which happened the Secretary of State was estopped from initiating deportation proceedings four years after he became aware that the applicant was an overstayer -- whether alleged promises made by the police to the applicant could give rise to an estoppel against the Secretary of State.

Legitimate expectation -- whether in the circumstances set out above a legitimate expectation arose that the applicant would not be deported.

Judicial review -- pleadings -- the need to define the issues.

Held:

The applicants were a brother and sister who were brought to the United Kingdom as teenagers and granted leave to enter as visitors. Subsequently their passports were fraudulently altered to suggest they had unlimited leave to remain. The applicants assisted the prosecution that later followed those events, in consequence of which their own immigration status remained unsettled for some years. In the fullness of time the Secretary of State decided to initiate deportation proceedings against them as overstayers. They appealed to an adjudicator. When the hearing opened counsel for Mrs Khan withdrew her appeal. The adjudicator recorded that withdrawal and proceeded to hear the appeal of the brother, which he dismissed. Deportation orders were then signed against both applicants. Judicial review was sought in each casel the applications were dismissed and appeals made to the Court of Appeal. In the case of Mrs Khan the first application for judicial review was based on compassionate circumstances. A year later another application was made on the grounds that she had never instructed her solicitors to withdraw her appeal before the Adjudicator. That application was also dismissed, both on the merits and because of delay. Before the Court of Appeal it was argued that the deportation order was invalid because her appeal in law had neither been properly withdrawn in accordance with the procedure rules, nor had it been determined by the adjudicator. The events which had happened had led to a breach of natural justice, she never having had an opportunity of having her case considered by the appellate authorities. It was also contended that after taking no action against the applicant for four years as an overstayer (while required as a witness in criminal proceedings) the Secretary of State was estopped from initiating proceedings against her. She had by then a legitimate expectation that she would be allowed to remain in the United Kingdom. In the case of Mr Deen it was asserted that the police investigating the passport offences committed by third parties had given him certain assurances which likewise gave rise to a legitimate expectation on his part and likewise estopped the Secretary of State from initiating deportation proceedings. Held: 1 The procedure rules contain provisions for the withdrawal of appeals by written notice before the commencement of hearings before the appellate authorities (r 6(5) of 1972) but there was nothing in the rules to support the proposition that counsel duly instructed could not validly withdrawn an appeal on behalf of his client at a hearing. 2 On the facts the Court refused to accept that counsel acted contrary to instructions, Rahman distinguished. 3 It followed that the appeal of Mrs Khan was properly withdrawn before the adjudicator: the deportation order was signed while no appeal was outstanding and the order was valid. 4 No estoppel arose to prevent the Secretary of State initiating deportation proceedings after a significant lapse of time. 5 On the facts, the applicant Mrs Khan could have no legitimate expectation as that was defined in CSSU v Minister for the Civil Service. 6 The application, considered on its mertis, failed; it also failed as the learned judge at first instance had held, because of undue delay in bringing the application. 7 In the case of Mr Deen, no legitimate expectation arose in consequence of the alleged promises by the police which in any event, if made, would in all probability not bind the Secretary of State. 8 The case as argued before the court was susbtantially different from what was earlier pleaded. Some of the pleadings were so wide as to encompass almost any submissions that could be made and were not thus of much assistance in defining the issues. The Court would not always grant the parties the latitude it had given them in this case.

Cases referred to in the Judgment:

Boal Quay Wharfingers Ltd, v Kings Lynn Conservancy Board [1971] 1 WLR 1563; [1971] 3 All ER 597; Saleh v Secretary of State for the Home Department [1975] Imm AR 154. Ancharaz v Immigration Officer, Heathrow [1976] Imm AR 49. Gowa v Attorney General (unreported, CA 20 December 1984). The Leonidas D [1985] 1 WLR 925; [1985] 2 All ER 796. CSSU v Minister for the Civil Service [1985] AC 374; [1984] 3 All ER 935. R v Secretary of State for the Home Department ex parte Deen (unreported) QBD , 31 October 1985). R v Diggines ex parte Rahmani and ors CA [1985] QB 1109; [1985] 1 All ER 1073. R v Diggines ex parte Rahmani and ors HL [1986] AC 475; [1986] Imm AR 195. R v Secretary of State for the Home Department ex parte Fauzia Khan [1987] Imm AR 173.

Counsel:

A Riza for the applicants; D Pannick for the respondent. PANEL: Fox, Neill, Bingham LJJ

Judgment One:

BINGHAM LJ: There are before the court appeals by a brother, Mr Deen, and his sister, now Mrs Khan. In each case the appeal is against the dismissal of an application for judicial review. Mr Deen's application was dismissed by Farquarson J on 31 October 1985, and Mrs Khan's by Taylor J on 5 December 1986. The appeals concern the operation of the immigration legislation. I shall make reference to certain of the statutory provisions in the case, although there is no need to refer in detail to other than a few provisions, there being little controversy about the effect of most of them. Persons who are not British citizens having a right of abode require leave to enter and remain in the United Kingdom as provided by sections 1(2) and 3 of the Immigration Act 1971. Section 3(1) of the Act provides, in paragraphs (b) and (c), that persons may be given leave to enter this country for a limited period and on conditions. If such persons overstay the period of entry permitted to them, they are liable to deportation under section 3(5)(a) of the Act. Section 5(1) confers power on the Secretary of State to make a deportation order. His power under section 5(1) is not, however, unfettered. Before it can be exercised, the individual affected by it must be given the opportunity to appeal in the first instance to an adjudicator, and thereafter to the Immigration Appeal Tribunal, against the Secretary of State's decision to make a deportation order. It is relevant in the present case to refer to section 15(2) which provides: "A deportation order shall not be made against a person by virtue of section 3(5) above so long as an appeal may be brought against the decision to make it nor, if such an appeal is duly brought, so long as the appeal is pending . . . " I omit the remainder of that sub-section. That provision is supplemented by Section 33(4) of the Act, which provides: "For purposes of this Act an appeal under Part II" (which includes Section 15(2) " . . . shall, subject to any express provision to the contrary, be treated as pending during the period beginning when notice of appeal is duly given and ending when the appeal is finally determined or withdrawn; and in the case of an appeal to an adjudicator, the appeal shall not be treated as finally determined so long as a further appeal can be brought by virtue of section 20 nor, if such an appeal is duly brought, until it is determined or withdrawn." The Secretary of State has power under the Act to make rules governing the control of immigration and for present purposes it is necessary to refer only to rule 143 contained in House of Commons Paper No 394. That reads: "Deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained without authorisation. Full account is to be taken of all the relevant circumstances known to the Secretary of State, including those listed in paragraph 141 before a decision is reached." Although much of the factual history, and almost all of the legal argument in these appeals is common to the case both of Mr Deen and Mrs Khan, it is I think convenient to deal with the cases separately, and I start with that of Mrs Khan. She was born on 22 November 1963, and is therefore now 23 years old. On 10 July 1977 she was admitted to the United Kingdom for one month on condition she took no paid employment. She was then aged 13. In about October 1977 it appears that she gave her passport to a person in order that it should be stamped with an endorsement purporting to revoke the limitation on the period of her stay. In saying that, I should emphasise that there is no suggestion of any criminality made against her -- understandably in view of her age. She did not leave at the end of one month and in May 1978 it came to the notice of the police that her passport, and a number of other passports including that of her brother, had apparently been stamped in the same fraudulent manner. Proceedings were brought against those responsible for perpetrating this fraud which resulted in the conviction of two defendants on 27 April 1979. Mrs Khan was not herself involved in those criminal proceedings, although her brother (among others) gave evidence for the Crown. In about October 1979 the Home Office received a report from the police concerning the proceedings which had taken place, on an unidentified date, made enquiries of the British High Commission in Nairobi concerning the passports in question. A reply was received by the Home Office from the British High Commission in March 1981. During this period the passports belonging to Mrs Khan and her brother were in the hands of the Home Office. It is an unfortunate feature of this case that from 11 May 1978 when these matters came to light involving the attention of the police until a letter written to Mrs Khan on 24 March 1982, nothing was said to her with regard to the view taken by the Home Office, concerning her immigration position. There was no communication of any kind, and as I have said, that is an unfortunate feature of this case since it would appear to be an elementary precept of good administration that public authorities who are involved with decision-making should inform interested parties where they stand and what decision, if any, is under consideration. However, be that as it may, a letter was written to Mrs Khan on 24 March 1982 informing her that it had come to the attention of the Home Office that her limited leave to enter the United Kingdom had expired. The letter then went on to remind her that she was currently in the United Kingdom without authority and should accordingly make arrangements to leave the country immediately. She was advised that should she fail to leave, steps might be taken to enforce her departure, although it was hoped that such steps would not be necessary. Following that letter, according to the Home Office statement which was later submitted, Mrs Khan's position was the subject of consideration by the authorities. That consideration led to a decision to make a deportation order of which she was given notice on 11 October 1982. The letter was addressed to her and began: "You were granted leave to enter the United Kingdom on 10 July 1977 for 1 month subject to an employment prohibition. The Secretary of State is satisfied that you have since remained without authority. "The Secretary of State has therefore decided to make an order by virtue of section 3(5) of the Immigration Act 1971 requiring you to leave the United Kingdom and prohibiting you from entering while the order is in force. He proposes to give directions for your removal to Kenya." The notice then went on to inform her of her rights of appeal. Mrs Khan decided to exercise those rights, and on 22 October 1982 gave notice of appeal to an adjudicator. Nearly a year later, for the purposes of those proceedings, a Home Office statement dated September 1983 was in the usual way, submitted outlining the basis upon which the Secretary o State's decision had been reached. After recounting the preliminary history, and referring to the letter of 24 March 1981, and to Mrs Khan's lack of response to it, paragraphs 5 of the Home Office Statement continued: "The Secretary of State then carefully considered the Appellant's position in the United Kingdom in the light of all the relevant information. The appellant had arrived in the United Kingdom aged 13 1/2 years and had been admitted for one month on a condiition prohibiting employment. She had now been in the United Kingdom for approximately 5 1/2 years, of which all apart from one month, had been without authority. She had not sought to regularise her stay with the Home Office but had allowed her passport to be stamped with a forged Home Office endorsement purporting to show that the time limit attached to her stay had been removed. On 24 March 1982 the appellant had been informed that she should now make arrangements to leave the United Kingdom immediately. However, she had ignored these directions and she had continued to remain without authority. In view of this the Secretary of State was not satisfied that the appellant would at any time leave the United Kingdom of her own volition. The appellant who had spent almost 5 1/2 years in the United Kingdom of which the majority had been without authority and was now 19 years of age had spent her formative years in Kenya. In addition, although other members of her family were in the United Kingdom, they were not settled here. Her mother and two brothers have also been told they have no basis of stay in the United Kingdom, and should make arrangements to leave. Taking all the circumstances into account, in particular the appellant's flagrant disregard for immigration control and in the absence of any compassionate circumstances and bearing in mind the need to maintain an effective immigration control the Secretary of State decided to deport the appellant by virtue of Section 3(5)(a) of the Immigration Act 1971 and to give directions for her removal to Kenya (HC 394 paragraphs 139, 140 and 143 and 154 refer). Notice of this decision was sent by first class recorded delivery to the appellant's known address on 11 October 1981. (Similar notices of intent to deport have also been served on the appellant's two elder brothers against which appeals have also been lodged. the aTppellant's mother is a United Kingdom passport holder and it is not possible to deport her). The matter came before the adjudicator for a hearing on 23 November 1983. There then occurred a matter which is recorded in the notes of the adjudicator, Mr Donnell. According to his notes counsel instructed on behalf of Mrs Khan having conceded that the endorsement in the passport was forged and there had been a criminal prosecution, said: "I withdraw the appeal of Fauzia Khan; appeal withdrawn'. That is supplemented by a note taken by the Presenting Officer, who attended the hearing on behalf of the Home Office. His note reads: "Hearing before Mr Donnell on 23rd November 1983. Mr Yazdani instructed by Mrs Ross, Williams Wakefield & Co solicitors, stated that they had been instructed to withdraw the appeal. An application to the Home Office for the appellant to be allowed to remain on compassionate grounds was to be made" -- and then the Presenting Officer made a note -- "I will keep this file with the brother's file who did pursue his appeal since the outcome of this appeal will be obviously of major interest to those dealing with the application on compassionate grounds." Therefore so far as Mrs Khan's appeal was concerned, it was treated as withdrawn and so noted on his own papers by the adjudicator. On 24 January 1984 the adjudicator gave reasons for his decision in the brother's case. He dismissed the appeal for reasons which are set out in detail in that document, and to which at this stage I need not refer. He referred to the withdrawal of Mrs Khan's appeal. On 21 June 1984 the Secretary of State made a deportation order against Mrs Khan. It was addressed to her, and said: "Whereas Fauzia Wamar Din Bagga Khan, not having the right of abode within the meaning of the Immigration Act 1971, and having only limited leave to enter the United Kingdom, has remained beyond the time limited by the leave and is, accordingly, liable to deportation by virtue of section 3(5)(a) of the said Act: "Now, therefroe, in pursuance of section 5(1) of the said Act, I by this order require the said Fauzia Wamar Din Bagga Khan to leave . . . " On 18 October 1984 Mrs Khan made an application for judicial review under Order 53 of the Rules of the Supreme Court. That application was supported by an affidavit sworn on 17 October 1984, in which her case was founded squarely on compassionate grounds. She said, in paragraph: "I submit that in this case there are compelling compassionate reasons to which the Secretary of State has not applied his mind to while making the Deportation Order and these are: "a) my dependency on my mother due to my age and my being a female member of the family; b) the possibility of physical harm on being removed to a country where I could be subject to harassment and discrimination." She submitted that the Secretary of State had misdirected himself in coming to a decision. The application itself was for judicial review to quash the decision of the Secretary of State to make a deportation order -- that decision being identified as the decision of 21 June 1984. It was therefore the deportation order made in June 1984 and not the decision made in October 1982 which was the subject of the application. The procedural history of the matter thereafter was somewhat protracted. The matter came before Forbes J in November 1984 and he adjourned the application for leave. It came before Taylor J in February 1985, and he adjourned the matter again for lack of papers. It then came before McNeill J in June 1985 and, in the absence of a representative for Mrs Khan, he refused leave . Following that refusal Mrs Khan was married in Octobr 1985, although no reliance is placed on that fact. Applications were made to the Home Ofice to reconsider her position in September and October 1985, but those requests were rejected in November. On 3 October 1985 -- nearly a year after the application for judicial review -- Mrs Khan swore a further affidavit in support of her application. In the course of that she deposed as follows: "4 My appeal and that of my brother came up for hearing together before an adjudicator, Mr IMS Donnell, on 23 November 1983. It appears that my appeal was withdrawn on that day and only my brother's was proceeded with. I gave no instructions to my solicitors to withdraw the appeal and I can only assume that this was done because my case was linked with my brother's case and the result of his appeal would also determine mine. Mr Donnell gave his Determination in respect of my brother's case on 24 January 1984 and he referred to the withdrawal of my appeal and to the connection between my brother's case and mine". She then produced and exhibited a copy of Mr Donnell's determination. That further affidavit having been sworn, a further application for leave was made to Mann J on 8 October 1985 and, on the basis of an amended application, he gave leave. In addition to the original application to quash the deportation order of 21 June 1984, he gave leave to apply for an order of certiorari to quash the decision of the adjudicator, Mr Donnell, on 23 November 1983 withdrawing the applicant's appeal against the decision of the Secretary of State to deport her dated 11 October 1982, and an order of mandamus directing the adjudicator to hear and determine the said appeal. Curiously, as far as I can see, the adjudicator never became a party to these proceedings. On 5 December 1986 Mrs Khan swore a further affidavit in which she elaborated the evidence contained in the previous affidavit concerning the withdrawl of her appeal. In paragraph 3 of that affidavit she said: "A day before the hearing fixed for the 23rd November 1983 Mr Handa told me not to go to the hearing because my brother's appeal would only be dealt with on that day. I repeat that I gave him no instructions to withdraw the appeal nor did he even tell me the appeal had been withdrawn. Nor did I give any instructions to Mr Yazdani of counsel to withdrawn the appeal on 23 November 1983. Indeed I had never met Mr Yazdani until after the adjudicator had given his determination of my brother's case and proceedings for judicial review were contemplated. On that evidence, in addition to an affidavit sworn on behalf of the Home Office by Miss Wickington, the matter came before Taylor J on 5 December 1986 and, as I have said, he dismissed the application. Mrs Khan accordingly gave notice of appeal against that decision. In the ordinary way one would, at this point, review the arguments which were addressed to the judge and the judge's conclusions on them in order to decide whether those conclusions are shown to be wrong. However, I do not propose to follow that procedure in this case because the argument in this court has been very significantly different from the argument before the judge, and only a relatively small part of his reasoning is, in my judgment, relevant to the case as now presented. In this court the contentions advanced on behalf of Mrs Khan have been very helpfully and succinctly summarised in a skeleton argument by Mr Riza who appears on her behalf. The first three of these grounds, relate to the withdrawal of the appeal before the adjudicator on 23 November. I hope, I summarise the three grounds compendiously and accurately in this way; Mr Riza submits that the deportation order of 21 June 1984 was unlawful because (a) a deportation order cannot be made while an appeal is pending, and (b) Mrs Khan's appeal was pending on that date because it had never been determined and never withdrawn. So far as proposition (a) is concerned, that depends on sections 15(2) and 33(4) of the Immigration Act 1971, which I have already cited. It follows from those sections that if a deportation order was made in this case while an appeal was pending -- that is before it was finally determined or withdrawn -- it was prima facie unlawful because it was a breach of the act and so subject to review. So far as proposition (b) is concerned, it is common ground that Mrs Khan's appeal was never determined, in the sense that it was never the subject of an adjudication and was neither allowed or dismissed. It was, as I have said, withdrawn. The only question is whether it was properly withdrawn for the purposes of the Act. It was submitted on behalf of Mrs Khan that it was not properly withdrawn because rule 6(5)(a) of the Procedure Rules 1972, (SI 1684 of 1972) requires withdrawal to be by written notice signed by the applicant addressed to the Home Office. It was argued that that conclusion is supported by two decisions of the Immigration Appeals Tribunal. Rule 6(5)(a) on which primary reliance is placed by Mrs Khan, reads as follows: "Subject to paragraph 6 below an officer to whom notice of appeal has been given in accordance with these rules shall, unless the appellant susbequently gives that officer written notice of the withdrawal of his appeal, take such steps as are necessary to ensure that the notice of appeal is referred to the appropriate appeal authority, together with such particulars relating to the nature and grounds of the appeal as have been given by the appellant." It is in my judgment plain, on reading that rule, that it lays a duty upon the Home Office to refer the appeal to the appellate authority, from which obligation the Home Office is only released by a notice in a certain form. The rule, however, says nothing about the manner in which an appeal may be withdrawn. It is of significance, however, as acknowledging the possibility of the withdrawal of an appeal which is also made plain by section 33(4) of the Act. Mrs Khan seeks support for her contention that an appeal can only be withdrawn by notice in the form which I have described in rule 34(1) and (5) of the procedure rules. Rule 34(1) is in these terms: "An appellate authority may, where in the circumstances of the case it appears to the authority proper so to do, hear an appeal in the absence of the appellant: (a) if satisfied that he is not in the United Kingdom; or (b) if satisfied that he is suffering from a communicable disease or from a mental disorder; or (c) if satisfied that by reason of illness or accident he cannot attend the hearing". Sub-rule (5) provides: "(b) for the purposes of this rule reference to a party including an appellant includes a reference to his representative." It may be that there is some disharmony between these two provisions since sub-rule (5) provides that an appellant shall be taken to include reference to his representative -- and it would seem to me surprising if an adjudicator could not proceed and hear a case in the appellant's absence because the appellant's representative was sick or suffering from a communicable disease, or was unable to attend because of illness or accident. What is, however, plain, is that there is no support whatever, under this rule, for the proposition that counsel duly instructed cannot validly withdraw an appeal on behalf of his client,. If there were any doubt as to that proposition it is, in my view, laid to rest by the terms of rule 26(2) which provides: "A person representing a party to an apepal in accordance with paragraph 1 above may take all such steps and do all such things relating to the proceedings as the person whom he represents is by these rules required orauthorised to take or do". The authorities on which reliance was placed do not, in my judgment, support Mrs Khan's submission. The first of those cases is Ancharaz v Immigration Officer, London (Heathrow) Airport [1976] Imm AR 49. There was in that case a written withdrawal of an appeal before a hearing. At page 50 the Appeal Tribunal said; "We have no doubt, as the Tribunal found in the case of Mohd Abdo Saleh after considering the judgments in the case of Boal Quay Wharfingers Ltd v King's Lynn Conservancy Board that an appellant, may before the hearing of his appeal, withdraw the appeal. When an appeal is properly withdrawn it does not, in our view, go into a state of suspended animation; it ceases to exist and there is no provision in the Immigration Rules for such appeal to be resuscitated. The withdrawal of the appeal put an end to its existence and there is no matter before us on which to adjudicate." The second decision relied on is that just referred to, Saleh v Secretary of State for the Home Department [1975] Imm AR 154. That authority, so far from supporting Mrs Khan's submission, in my judgment undermines it. There was in that case an oral withdrawal of an appeal at the beginning of the hearing by the appellant's representative. The adjudicator, it would seem in a mood of some irritation, insisted on continuing with the hearing. The Immigration Appeal Tribunal held that he was wrong to do so. They said at page 157: "If an applicant, that is a person who legally has the right to make an application to a Tribunal or to a court, also has the right to withdraw his application we can see no reason why the appellant who has a right of appeal by law should not also have the right to withdraw his appeal, unless, of course, expressly prevented by statute. The rules provide for a withdrawal of an appeal and we have no doubt that an appellant or his representative if so instructed, may, before the hearing of the appeal, withdraw the appeal. That is what happened before the adjudicator. Before Mr Hussain opened the appeal on behalf of the appellant he told the adjudicator that he wished to make an application to withdrawn. The adjudicator held that the appeal having started he had a discretion and the appeal must proceed but, with respect, the appeal had not started. The parties' representatives had assembled before the adjudicator, and before any evidence, submissions or argument in support of the appeal had been uttered Mr Hussain applied to withdraw. In our view Mr Hussain's application should not have been refused but granted. We have not considered up to what time an appeal can be withdrawn and do no more than note that Lord Goddard (in the case cited earlier) thought that an application could be withdrawn up to any time before the Tribunal gives its decision." The Tribunal accordingly allowed the appeal in that case and directed that the appeal be marked "withdrawn". In my judgment this argument fails for the simple but fundamental reason that Mrs Khan's appeal was not pending at the time the deportation order was made because it had been withdrawn. Ground four of the appeal, as set out in Mr Riza's skeleton argument was put in this way: "Alternatively, even if the Secretary of State had power to make the deportation order under Section 5(1), and even if there had been no procedural impropriety or irregularity, the decision-making process culminating in the making of the deportation order on 21 June 1984 had been infected by an infringement of a rule of natural justice when the appellant's appeal had been withdrawn in her absence and without her consent given in writing (see R Diggines, ex parte Rahmani and ors [1985] QB 1109)". That was a case in which persons to whom leave to enter this country for a limited period had been granted, applied for an extension of that leave, which was refused. They appealed and intimated that they sought an oral hearing of the appeal. When the date for the hearing of that appeal arrived, the appellant's advisers were unable to get in touch with the appellants and obtain instructions. They accordingly attended before the adjudicator and said they had no instructions, but invited him to determine the appeals on the available material. He did so, and dismissed the appeals. The appellants then discovered that the appeals had been dismissed and applied for judicial review, which Taylor J granted and he quashed the adjudicators decision. The matter then came before this court, and the first judgment was given by Stephenson LJ, who said this at page 1122 E to G: "We have now to decide whether it is permissible to quash such a decision when the applicant is wholly innocent and it is the applicant's advisers who are at fault. I have come to the conclusion that it is. Taylor J thouht so, and I agree with him for the reason he gives in the passage which I have already quoted from his judgment. We do not have to consider, and the judge very properly did not consider, whether it is ever permissible to grant judicial review to an applicant who is not wholly innocent. Where the mistake or misunderstanding which leads to the denial of natural justice is the applicant's own, it may seldom, if ever, be right for the court to exercise its discretion in his or her favour; for in most, if not all, cases of this kind, there could be no unfairness towards the author and only begetter of the procedural defect. But I would hold, if necessary, that the court has the discretionary power to review and quash a decision reached as a result of an applicant's own fault. Fox LJ said at page 1124 A-B: "The essential features of the case are these. The applicant was entitled to an oral hearing before the adjudicator if she asked for one. She did ask for one. She did not receive an oral hearing; her appeal was dismissed in her absence without one. The fact that she did not get an oral hearing was not through any fault of her own or of the adjudicator." Then between E and F my Lord said: "What happened here was that, without any fault by the adjudicator or the applicant, the adjudicative process failed and the applicant was wholly denied the oral hearing which she had asked for and to which she was entitled. It is difficult to regard that as other than a deprival of justice". The third member of the court, Purchas LJ said at page 1128 D-E: "With respect to the able argument of Mr Collins, I cannot agree that in the presence of an established breach on the part of an inferior tribunal of the rules of natural justice, eg failure to obey the principle audi alteram partem, the court has no jurisdiction to grant an order of certiorari, notwithstanding that the failure had arisen through no fault of the tribunal itself. Whether or not the court should exerise discretion will depend on ascertaining the cause of the failure in relation to the conduct of the applicant." The Court of Appeal accordingly upheld the decision of Taylor J. The case then went to the House of Lords, where it is reported in [1986] AC 475. The decision of this court was confirmed but on different grounds, namely, that the adjudicator had not, in the circumstances, been entitled to proceed without an oral hearing. Scarman LJ at page 477G said: "The Court of Appeal upheld the judge, on the same ground ie, that although there was no error on the part of the adjudicator in holding that rule 12 covered the case, the immigrants through no fault or their own had by his exercise of the rule 12 power to dispense with a hearing suffered an infringement of the rule of natural justice. The principle which both courts accepted is, if good law, of very great importance: it is that a decision of public authority, which is within the power conferred by statute has been reached without procedural impropriety or irregularity on its part, can, nevertheless, be quashed upon judicial review if the exercise of the power has in the circumstances resulted in an infringement of a rule of natural justice. Because of the importance of the point the House gave leave to appeal. However, as a recital of the facts will show and as I understand your Lordships unanimously accept, the point does not arise. The truth is that the conditions which rule 12 requires to be met to enable an appellate authority to determine an appeal without a hearing were not met in this case. The adjudicator erred in law in acting upon the assumption that the rule applied. His decision to dismiss the appeals may, therefore, be quashed upon this simple ground." In the light of those authorities, the first question which must be asked is whether there was here a denial of natural justice to Mrs Khan. Prima facie it would seem to me the answer is plainly no. She was represented at the hearing by solicitors and counsel, duly authorised to act for her, who formally withdraw her appeal. A full opportunity for an oral hearing who made available to her; she, through, her advisers, chose not to take advantage of that opportunity. Mrs Khan's riposte to that argument is that it is not correct because her advisers acted without her authority and contrary to her known instuctions and reliance is of course placed on her affidavits, to which I have referred. I would not, for my part, wish to hold that this is a ground which, if properly made out, could not found a successful application for judicial review in appropriate circumstances. If a procedural mishap occurs as a result of misunderstanding, confusion, failure of communication, or even perhaps inefficiency, and the result is to deny justice to an applicant, I should be very sorry to hold that the remedy of judicial review was not available. However, that question does not fall for decision in this case in my judgment, for two reasons. The first of those reasons relates to the facts. The case now advanced is that the solicitors accted in flagrant breach of their instructions in instructing counsel to withdraw Mrs Khan's appeal. That is something which I am reluctant to believe without extremely cogent evidence. There is of course evidence to that effect from Mrs Khan, but it was evidence which was not brought forward for 18 months after publication of the adjudicator's award, and 12 months after her application for judicial review. There is, furthermore, the extraordinary fact that the solicitors on whose instructions counsel advanced this argument to this court, as the same firm -- although I emphasise not the same individual within the firm -- are the solicitors acting at the time. They remain silent on the subject. There is no confirmation of what their client says: there is no evidence of any kind that they have approached the executive acting at the time and are unable to discover what transpired. There is no contemporary attendance note recording events contemporaneously. I am, therefore, unpersuaded that the factual basis for this unusual plea is made out. The second argument, which is in my judgment relevant, relates to delay. This is a matter which was argued before the judge, and I shall return to it. Ground five of Mr Riza's skeleton argument relates to estoppel. The ground is put in this way: "That by his conduct the Secretary of State was estopped from relying on the applicant's overstaying from 11 May 1978 to 24th March 1982 as constituting remaining here without authorisation and/or in defiance of immigration conrol". Then reliance is placed upon an unreported case, Gowa v Attorney-General decided on 20 December 1984. The factual basis of this contention is that between matters coming to the notice of the police in May 1978 and the writing of the letter of 24 March 1982, the Home Office took no step to terminate Mrs Khan's residence in this country or to deport her, despite the fact they held her passport, and for part of this period at least the presence of Mrs Khan's brother (so it is said) was desired in order that he could give evidence against those responsible for forging a number of passports. The role of estoppel in public law, particularly where matters are governed by statute, is of some complexity. However, in my judgment it is not necessary to resolve any problems in this case, and to consider the issues raised by Gowa's case. Any estoppel requires the establishment of two major elements; first there must be a representation, which may be by words, conduct or even silence and inaction. But whatever the mode of representation it is clear on abundant authority that the effect of the representation must be clear and unambiguous. The second element is that there must be reliance by the representative on the representation such that it would be detrimental to the representee if the representor were held to be entitled to withdrw from the effect of his representation. As to the first of those elements in this case, nothing was said or written so that, as far as Mrs Khan is concerned, it is a case of silence and inaction only. It is not easy for silence and inaction alone to give rise to a clear and unambiguous representation, as was pointed out by this court in the Leonidas D [1985] 1 WLR 925. It may, however, for purposes of argument, be assumed that there were in this case circumstances giving rise to a reasonable impression that the period of stay between May 1978 to March 1982 would not in any subsequent decision be held againt Mrs Khan. As to the second element, there is no evidence that Mrs Khan did think that such a representation was being made, or that she relied on it in any way. It is not perhaps surprising that there is no such evidence because this point was not advanced before the adjudicator or the judge, and therefore evidence was not directed to it. The point was raised in this court for the first time. There is, however, an even more fundamental objection to this argument. It is not shown that the Secretary of State has done that which it is said he is estopped from doing. It is true that the Home Office statement of September 1983 expressed a critical view of Mrs Khan's conduct in her remaining in this country after the expiry of her limited leave in 1977. It is also true that there was no hearing of her appeal. There was, however, a hearing of her brother's appeal. The adjudicator went into it and he made various findings, to which I shall refer, which show that the Home Office (these are my words and not the adjudicator's) acquiesced in a period of overstaying in this country. It is plain that these cases were considered together by the Secretary of State as is apparent from the coincidence of dates, but it is not in my judgment in any way made out that the Secretary of State has held this erly period of residence against Mrs Khan in making his decision. He could scarecly do so without ignoring the adjudicator's factual conclusions. The sixth ground advanced is put in this way: "Alternatively, the appellant had a legitimte expectation that the said period of time would not be treated as unauthorised stay, or remaining here in defiance of immigration control." Reliance is placed on the CSSU case [1985] AC 374 -- in particular on the passage in the speech of Lord Diplock, page 408 at letter G. It is unnecessary in my view to consider this ground or that authority in detail. The only legitimate expectation alleged is that the Secretary of State would not rely on this four-year period of residence against Mrs Khan, and as I have endeavoured to point out, there is no evidence that he has at any time after Adjudicator's decision done so. The seventh ground is: That both the decision to deport of 11 October 1982 and the making of the order on 21 June 1984 had been Wednesbury unreasonable in that inter alia in reaching his decision the Secretary of State considered the said period as having the quality of unauthorised stay." This is a ground which, in the course of argument, caused me some considerable conern since it is apparent from the Home Office statement to which I have referred, that in September 1983 the Home Office did regard the period of residence between May 1978 and March 1982 as having been in flagrant disregard of the immigration rules. It appears, as I have said, that the Home Office did to some extent at least acquiesce in that period of stay, and to that extent it would be unreasonable to weigh that period in the scale against her, as the Home Office statement apparently did. As I have said, however, there was an appeal in the brother's case, though not in the case of Mrs Khan. The facts relating to that four-year period of stay were explained and were recounted in the decision. There is no suggestion in the Home Office Statement of Miss Wickington, sworn on 4 July 1985 for the purposes of this judicial review application, that that period of overstaying was relied on when the deportation order was made. It is, I think fair to assume that the Secretary of State considered the adjudicator's findings. He certainly is said to have considered the matter, and in my view, it would be wrong to assume that the reasoning in September 1983 statement, which preceded the adjudication and the adjudicator's reasons and the further consideration before the deportation order was made, left the Secretary of State's mind unaffected. Therefore it seems to me that one must approach this matter on the basis that the adjudicator's decision was part of the material for the Secretary of State's final consideration, and that one cannot accuse him of unreasonably adhering to a view of the facts when there is no evidence that he did so. The last of the grounds advanced on behalf of Mrs Khan does not I think advance the argument. I should refer to the question of delay, because this I was a matter which was argued before Taylor J. It was then argued on behalf of the Secretary of State as follows (and I quote from the judgment): "Finally Mr Laws submits that on both limbs of this case, the delay which has occurred is such as should prevent this court from entertaining this application and granting any relief. First of all, in relation to the adjudicator it is submitted that the withdrawal of the appeal having taken place on 23 November 1983, that is when the time should have begun to run for judicial review. Even if one goes forward from there to various stages, the judicial review in respect of that matter was not raised until October 1985 when the case came before Mann J. Leave to appeal for judicial review was first sought on 18 October 1984, but that was only in regard to the Secretary of State. This matter of the withdrawal of the appeal was not raised. When the case was due to be heard by McNeill J (although nobody turned up actually on the hearing) there had been no amendment at that stage of the proposed application for judicial review nor was there any after McNeill J's rejection. It was not until September 1985 that there was even a letter raising this matter. That, of course, is nearly two years after the withdrawal of the appeal and many months after this applicant must have realised what the situation was. "I asked whether the same legal advisers were acting for the applicant throughout because it seemed to me a matter that one ought to consider as to whether in some way this applicant might have been put off from pursuing a remedy which would have involved the exposure of fault on the part of the solicitors. However, even on that basis, it is clear that the legal executive who was said to have been at fault handed over the matter in July 1985 and it still was not until October 1985 that an application was made to Mann J:" That, therefore, was the argument addressed to Taylor J and he dealt with it in this way: "This submission of Mr Laws as to delay, it seems to me, compounds, what has already been said about the argument with regard to judicial review of the withdrawal of the appeal. Certainty in litigation and finality of litigation are important principles. This is recognised by the time limits which Order 53 and section 31 of the Supreme Court Act lay down. The time limit is three months and indeed even that is not necessarily a safe period to rely upon. What the rules require is that application should be made promptly and in any event not more than three months after the decision which gives rise to it. That is clearly in order that administration can be efficient and that administrators are not required to look back for months and years and delay their proceedings in order to deal with belated applications for judicial review. "If that is the principle which applies in general to the situation where properly instructed lawyers withdraw an appeal, a fortiori it must apply in a case where the complaint about the withdrawal of the appeal does not come for as long as it does in this case. Compounding the two together, it seems to me that in respect of the proposed ground that the withdrawal of the appeal should be open to judicial review, the application mus fail. "As regards the Secretary of State, again Mr Laws points to the delay. The decision to make the deportation order was as long ago as 11 October 1982. True the applicant then had a right of appeal against that, but the appeal hearing ws on 23 November 1983. There was in fact no application for judicial review in regard to the Secretary of State until 10 October 1984. So here again, the period of delay is a very long one. "In my judgment Mr Laws is entitled to succeed on behalf of the Secretary of State on the grounds of delay alone." As is apparent from that passage, the case advanced to Taylor J was put by way of an attack, so far as the Secretary of State was concerned, on the 1982 and not the 1984 order. However, I find no fault of any kind in the judge's reasoning or with his conclusions. I fully agree with both. It accordingly follows that so far as Mrs Khan's appeal is concerned, it must fail. I now turn to deal more briefly with the case of Mr Deen. He was born on 7 June 1958. He was admitted to this country on 31 May 1977. He was then aged nearly 19. He was admitted for one month, subject to the same restriction of taking employment as his sister. The history so far as the passports, the stamping of the passports, the discovery of the fraudulent endorsement by the police, the convictions, the report from the police, the enquiry of the High Commission in Nairobi and the Home Office letter of 24 March 1982, are precisely the same as in the case of Mrs Khan. In 1981 Mr Deen married and became the father of a daughter in 1982. Before the adjudicator a great deal was made of the state of his marriage -- but that is something not now relied on and acccordingly I need go into no detail concerning that matter. On 11 October 1982 he was given notice of the Secretary of State's decision to make a deportation order. He gave notice of appeal to an adjudicator on two grounds, first that he was part of a family unit settled in the United Kingdom, and second, that he was married to a citizen of the United Kingdom. The Home Office statement, to which I have made reference in the case of Mrs Khan, was produced in September 1983. It is not necessary to repeat that, although the findings so far as overstaying was concerned, are in effect precisely the same as those made against his sister. A great deal of that statement was taken up with facts relating to his marriage. The adjudicator's hearing took place on 23 November 1983 and in Mr Deen's case was fully presented and argued. He himself gave evidence. He said, in the course of his evidence, that during the period when the prosecution of the fraudulent forgers of the passports was in train and after it, the police told him that "everything would be alright" so far as his immigration position was concerned, since he and other members of his family had been Crown witnesses. He said "The police said everything would be all right as we have been Crown witnesses. We could stay", and again "The police said everything would be all right as we were Crown witnesses. Up until the deportation notice we understood everything would be alright. The adjudicator's reasons were given on 24 January 1984. He found that Mr Deen had admitted that he came to this country for the purpose of settling here when he was not entitled to do so. That finding was based on evidence from Mr Deen: "When I came I was young. I came by plane. The intention was I should stay the rest of my life in the United Kingdom. We did not consider we had a future there". In a passage headed Determination, the adjudicator said this: "I find this case difficult to determine, not least because I am not, I feel, in full possession of the information concerning it. "It seems obvious that no action was taken by the Home Office for some four years for the reason that the appellant was required to give evidence against a person who was engaged in arranging fraudulent endorsements in passports." Then a little further he said: "He" (that is Mr Deen) "says that he was given some assurance by the police at the time of the investigation into the passport frauds in respect of which he gave evidence, that he would be entitled to remain here. If such an assurance were given, of which there is no evidence, apart from that of the appellant, it would have been unwise, to say the least, for the appellant to rely on it. If he had wished to ascertain his position he ought to have approached the Home Office. I do not consider that he was entitled to believe that any police officer would be acting on behalf of the Home Office in this respect." Then, having weighed up the compassionate considerations in Mr Deen's case, the adjudicator dismissed his appeal. The deportation order followed, as in Mrs Khan's case, on 21 June 1984, and on 18 October 1984 Mr Deen made application for judicial review. He supported that by an affidavit sworn on 17 October, in which the ground advanced was that account had not been taken of his marriage before a decision to deport. His application was made to quash the deportation order of 21 June 1984. He swore an affidavit on 31 January 1985 in which he deposed of his having been required to stay, to his having been a Crown witness, and to his belief that he would stay. Leave was given to move for judicial review. The matter came before Farquarson J who, as I have said, dismissed the application on 31 October. The first grounds advanced on behalf of Mrs Khan do not apply in Mr Deen's case, but the estoppel ground is relied on. Mr Deen bases his argument on the additional contention that he was assured by the police that he could remain in this country. He faces the problem that a finding of fact on the matter was not made in his favour by the adjudicator, who clearly was in some doubt as to the effect of this evidence. Furthermore, it is by no means clear that the Secretary of State would in any event be bound by a representation made by the police. However, in his case there is no evidence that he has relied on any such representation to his detriment, and no evidence whatever that the Secretary of State has done that which he is said to be estopped from doing, namely, weighing the effect of this early overstaying period against Mr Deen. His argument on that ground also, as I conclude, fails. The arguments based on legitimate expectation are the same as those in Mrs Khan's case -- although in Mr Deen's case it is relevant to bear in mind answers which he gave in the course of the adjudictor's hearing. In answer to the question "Did you believe you would be entitled to remain on marriage?" he answered: "No I didn't". Then in answer to the question: "Did you not think you had to go back to the Home Office"? (this question clearly being directed to the period between 1978 and 1982) he answered; "I was dealing through my solicitors Wakefield & Co . . . I knew I did not have permission to stay". His argument on that issue fails in my judgment, as does the argument on reasonableness, for the same reasons as in Mrs Khan's case. The observations which I have already made on the subject of delay apply also (despite the factual differences) in his case, and for those reasons also his appeal fails. I conclude by saying this: The shape of this case has changed very substantially from the date when original application was made under Order 53. Each affidavit put a new gloss on the way in which the case was put -- and indeed, even the Notice of Appeal to this court gave little indication of the effect of the argument. The argument in this court has indeed been fundamentally different from that before the judge in either case. This is not, I hasten to stress, in any way the fault of Mr Riza, who has presented the case for both appellants with great skill and frankness. But a departure from the cases previously conducted does lead to a very unsatisfactory position. One obvious result is that evidence was not, in large part, led on points which are now in issue and thus, as I have pointed out there is no factual basis for a number of the contentions advanced. Furthermore, the respondent is in the unhappy position of not knowing what case he has to meet. When challenged with the point that certain of his arguments advanced in this court were entirely new, Mr Riza referred to one of the original applications for judicial review, in which under the heading "Grounds on which relief is sought" paragraph 1 read: "The decision of the Secretary of State is against the immigration laws and rules and against natural justice". Mr Riza submitted that that covered the submissions he was making -- as in one sense it certainly did, not least because it would cover almost any submission that could conceivably be made. But it must be born in mind that the purpose of any notice or pleading is to define the issues and concentrate the attention of all concerned on what is to be the subject of argument. I make these admonitory observations because it should be clearly understood that parties cannot rely on the latitude which the court has granted in this case.

Judgment Two:

NEILL LJ: I agree that these two appeals should be dismissed for the reasons given by my Lord.

Judgment Three:

FOX LJ: I also agree.

DISPOSITION:

Appeals dismissed.

SOLICITORS:

Ross, Williams Wakefield & Co; Treasury Solicitor.