R v. Secretary of State for the Home Department, Ex parte Yeboah; R v. Secretary of State for the Home Department, Ex parte Draz

COURT OF APPEAL (CIVIL DIVISION)

 

[1987] 1 WLR 1586, [1987] Imm AR 414

Hearing Date: 20, 23 March, 14 April 1987

14 April 1987

Index Terms:

Immigration -- Deportation -- Notice -- Notice of decision to deport sent to last known address -- Notice returned undelivered -- Whether notice given -- Whether requirement of written notice of decision to deport dispensed with -- Whether subsequent deportation order valid -- Immigration Appeals (Notices) Regulations 1972 (SI 1972 No 1683), regs 3(1)(4), 6 -- Immigration Appeals (Procedure) Rules 1972 (SI 1972 No 1684), r 4(11)

Immigration -- Appeal -- Notice -- Limited leave to enter -- Application to extend stay refused -- Notice of appeal filed -- Notification of hearing date sent to address on notice -- Notification returned to sender -- Adjudicator dismissing appeal in applicant's absence -- Whether impracticable to give applicant notice -- Whether subsequent deportation order valid -- Immigration Appeals (Procedure) Rules 1972, r 12(c)

Held:

The applicants, Y and D, arrived in the United Kingdom in 1973 and 1981 respectively, and each was permitted to enter for a limited period. Y remained beyond that period without leave, and in 1978 the Secretary of State made a decision to deport him. All attempts to ascertain Y's whereabouts failed and a notice of that decision was sent by recorded delivery post to Y at his last known address, namely the address he had given to the immigration officer on arriving in the United Kingdom, but the letter was returned undelivered. In due course, there being no appeal or other communication, a deportation order was made in respect of Y. In the case of D, at the expirty of his leave to remain in the UK, he applied for an extension. That application was refused and D filed a notice of appeal. A notification of the date of the hearing of the appeal was sent to D by recorded delivery post at the address given in his notice of appeal, but the letter was returned undelivered. The appeal was dismissed by the adjudicator without an oral hearing in D's absence. In 1983 the Secretary of State decided to deport D, and a notice of the decision was sent by recorded delivery to D's last known address. The notice was returned unclaimed as D had changed his address without informing the authorities. A deportation order was subsequently made in respect of D. Both applicants remained unaware of the deportation orders until after the time permitted for appeal had elapsed. Both applied for relief by way of judicial review on the ground that the deportation orders were invalid as the requirements of regulation 3(1) of the Immigration Appeals (Notices) Regulations 1972 and rule 4 of the Immigration Appeals (Procedure) Rules 1972 had not been complied with in that they had not received notice of the decisions to deport, and in D's case on the further ground that he had not received noticeof the date of hearing of his appeal against the refusal to grant him an extension of his stay. Both applications were dismissed. On the applicants' appeals which were heard together:- Held, dismissing the appeals, (1) that, as the evidence was sufficient to satisfy the court on a balance of probabilities that, at the dates of the decisions to deport the applicants, the Secretary of State had no knowledge of their whereabouts, notwithstanding that there was no affidavit evidence specifically deposing to that of knowledge, regulation 3(4) of the Immigration Appeals (Notice) Regulations 1972 operated to exclude the requirement under regulation 3(1) that written notice of the decisions to deport had to be given to the applicants; that, further, on the true construction of the Regulations of 1972, the word "sent" in regulation 6 of the Regulations and in rule 4 of the Rules of 1972 meant "despatched," and could not be construed to mean "received", so that notice of the decisions to deport had in any event been properly given to the applicants by virtue of regulation 6 on the dates on which the notices were posted by recorded delivery to their last known address and time for appeal started to run from those dates; and that, accordingly, the deportation orders were not invalid. Reg v London County Quarter Sessions Appeals Committee, Ex parte Rossi [1956] 1 QB 682, CA and Reg v Immigration Appeal Tribunal, Ex parte Ekrem Mehmet [1977] 1 WLR 795, DC considered. (2) That in the case of the applicant D, the adjudicator was entitled on the information before him to rely on rule 12(c) of the Immigration Appeals (Procedure) Rules 1972 and to determine the appeal without a hearing on the grounds that it was impracticable to give the applicant notice of a hearing. Per curiam. (i) It may well be that in future where regulation 3(4) of the Regulations of 1972 is to be relied on there should be affidavit evidence dealing specifically with the state of knowledge of the Secretary of State. (ii) In a case where the Secretary of State is satisifed that notice of the decision to deport has not been received and there has been no wilful attempt to avoid it, a reference under section 21 of the Immigration Act 1971 might well be thought appropriate. Decisions of Simon Brown J and Farquharson J affirmed.

Cases referred to in the Judgment:

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; [1984] 3 WLR 1174; [1985] ICR 14; [1984] 3 All ER 935, HL (E) Hewitt v Leicester Corporation [1969] 1 WLR 855; [1969] 2 All ER 802, CA Reg v Immigration Appeal Tribunal, Ex parte Ekrem Mehmet [1977] 1 WLR 795; [1977] 2 All ER 602, DC Reg v London County Quarter Sessions Appeals Committee, Ex parte Rossi [1956] 1 QB 682; [1956] 2 WLR 800; [1956] 1 All ER 670, CA Reg v Secretary of State for the Home Department, Ex parte Makham Singh (unreported), 9 February 1976, DC.

Cases cited in the Judgment:

No additional cases were cited in argument.

Introduction:

APPEALS from Simon Brown J and Farquharson J. REGINA v SECRETARY OF STATE FOR THE HOME DEPARTMENT, Ex parte YEBOAH By application dated 18th April 1985 the applicant in the first appeal, Edward Raymond Ntiri Yeboah, sought judicial review by way of certiorari to quash a notice of refusal of leave to enter the United Kingdom dated 16 December 1984 addressed to the applicant by the immigration officer, Sheerness, kent, mandamus directed to the immigration officer to reconsider the applicant's request for an appeal out of time to an adjudicator as a preliminary issue, and a declaration thatthe applicant was entitled to a preliminary hearing under rule 8(3)(b) of the Immigration Appeals (Procedure) Rules 1972. On 30 January 1986 Simon Brown J dismissed the application. By notice of appeal dated 26 February 1986 the applicant appealed on the grounds, inter alia, that the judge erred in refusing the application in that the applicant had no knowledge of a notice of deportation served on him by the Secretary of State for the Home Department and therefore was within time to lodge an appeal out of time, and alternatively that the deportation order dated 30 March 1979 or the failure to revoke that deportation order was a disproportionate penalty on the appicant. REGINA v SECRETARY OF STATE FOR THE HOME DEPARTMENT, Ex parte DRAZ The applicant in the second appeal, Mohamed Mohamed Daoud Draz, sought judicial review of a decision dated 13 November 1984 of the Secretary of State for the Home Department refusing the applicant's request to appeal out of time to an adjudicator. The relief sought was an order of mandamus directing the Secretary of State to reconsider the applicant's request and a declaration that the applicant was entitled to a preliminary hearing under rule 8(3)(b) of the Immigration Appeals (Procedure) Rules 1972. On 31 October 1985 Farquharson J dismissed the application. The applicant appealed on the grounds, inter alia, that the judge erred in refusing the application in that he failed to apply the correct principles and that the decision of the Secretary of State was one which no reasonable Secretary of State properly directing himself could have reached. The appeals were heard together. The facts are stated in the judgment of Sir Nicolas Browne-Wilkinson VC.

Counsel:

Sir Charles Fletcher-Cooke QC and KS Nathan for the applicant Yeboah; KS Nathan for the applicant Draz; David Pannick for the Secretary of State.

Judgment-READ:

Cur adv vult 14 April. The following judgments were handed down. PANEL: Sir Nicolas Browne-Wilkinson VC, Parker and Ralph Gibson LJJ

Judgment One:

SIR NICOLAS BROWNE-WILKINSON VC. These are two appeals from decisions ofthe Divisional Court dismissing applications for judicial review. Although the facts of the two cases differ, the central issue in both is the same, namely, whether a deportation order can validly be made under the Immigraion Act 1971 in a case where notice of the decision to deport has been sent to, but not received by, the person to be deported. Statutory background The background statutory framework is as follows. Under section 1(2) of the Act of 1971, those not having a statutoy "right of abode" in the United Kingdom are subject to such regulation and control of their entry into, and stay in, the United Kingdom as the Act provides. Under section 3(1) a person may be given leave to enter for a limited period and subject to conditions. Such limitations and conditions may subsequently be varied. Under section 3(5) a person is liable to deportation if he remains after the time limited by the leave to enter. Section 5(1) provides that a person who is liable to deportation under section 3(5) can have a deportation order made against him. Such deportation order can be revoked by the Secretary of State for the Home Department. The Act does not expressly distinguish between a decision to deport on the one hand and the actual deportation order on the other. But such a distinction is implicit in the provisions of the Act and is in practice observed. Section 5(1) provides that a deportation order invalidates any leave to enter or remain in the United Kingdom given to the applicant whether before or after the deportation order is made. Therefore, so long as a deportation order stands, an applicant can no longer have any right to stay in the United Kingdom. Part II of the Act of 1971 lays down a system of appeals to adjudicators and the Immigration Appeal Tribunal against decisions made under the Act. Section 15 provides for appeals against decisions to make a deportation order and to refuse to revoke a deportation order. It contains two provisions of central importance to the present cases. First, section 15(2) provides that a deportation order shall not be made "so long as an appeal may be brought against the decision to make it." This provisions is central to the argument: both applicants are seeking to establish that at the time at which their respective deportation orders were made they still had a right of appeal against the decision to deport, as a result of which the deportation orders themselves were nullities. Secondly, section 15(3) provides that no appeal can nbe brought against a refusal to revoke a deportation order so long as the applicant is in the United Kingdom. Therefore, in the present cases if the existing deportation orders are valid the applicants will have to leave the United Kingdom before they can pursue their ultimate legal right, namely, an appeal against a refusal to revoke the deportation order. Section 18 confers on the Secretary of State power to make regulations relating to notices of matters in respect of which there are rights of appeal. Section 22 confers power to make rules regulating the exercise of the rights of appeal and the procedure on appeals. The relevant regulations made under those powers are the Immigration Appeals (Notices) Regulations 1972 ("the Notices Regulations") and the Immigration Appeals (Procedure) Rules 1972 ("the Procedure Rules"). Much of the argument in these cases has turned on the detailed provisions of certain of those regulations and rules which I will set out later. I will first state the facts of the Yeboah case. The Yeboah case The facts Mr Yeboah, who is Ghanaian by birth, arrived in the United Kingdom on 19 August 1973 when he was 17 years old. He was given leave to enter for a period of four weeks only. He gave as his address in the United Kingdom regulation his uncle's home, 13 Ashbourne Road, Mitcham, Surrey. It is not clear whether he ever stayed with his uncle at that address. If he did, he left it very shortly after his arrival. For the next five years he was engaged in a course of computer studies. On completion of those studies in 1978 he started a company which is now a successful company dealing in computer hardwear and software. Although he never communicated his whereabouts to the immigration authorities he lived quite openly in this country. He has married and has a son born in this country. In the meantime, the immigration authorities had been taking certain steps. On 20 October 1978 the Secretary of State made a decision to deport. Previous inquiries of the applicant's uncle had revealed that the uncle had no knowledge of the applicant or his whereabouts, but thought that the applicant must originally have come to visit the previous occupier of 13 Ashbourne Road, a Miss Boamah. Accordingly, two notices of the decision to deport were sent by recorded delivery, one to 13 Ashbourne Road, the other to the address to which Miss Boamah had moved. Both notices were returned marked "not known." The Home Office accept that Mr Yeboah may well be right when he says he was quite unaware of the decision to deport him. In due course, there being no appeal or other communication from Mr Yeboah, a deportation order was made on 30 March 1979. In 1982 Mr Yeboah went on a business visit to the Brussels Trade Fair on a Ghanaian travel document. When he returned to the United Kingdom four days later, his travel document was stamped with an indefinite leave to remain in the United Kingdom. In view of the pre-existing deportation order, this was a mistake and, under section 5(1) of the Act of 1971, has no legal validity. On 30th July 1984 Mr Yeboah obtained a Ghanaian passport. On 17 November 1984 he left the United Kingdom for another short business vist to the Amsterdam Trade Fair. When he re-entered the United Kingdom on 20 November 1984 he was given temporary admission only while the position was investigated. For the first time he learned of the deportation order which had been made against him. On 16 December 1984 he was refused leave to enter on the grounds of the pre-existing deportation order. That decision was confirmed by a decision of the chief immigration officer communicated in a letter to him dated 25 March 1985. In these proceedings Mr Yeboah seeks judicial review to quash (1) the decision to refuse leave to enter dated 16 December 1984; (2) the confirmation of that decision dated 25 March 1985; and (3) the deportation order dated 30 March 1979. The fundamental relief claimed is the quashing of the deportation order itself, since so long as that stands to no leave to enter can validly be granted in consequence of the provisions of section 5(1) of the Act of 1971. In outline, Mr Yeboah's contention is that the relevant regulations required notice of the decision to deport to be served on him; that such notice has never been validly served; that, accordingly, the time for appeal against that decision has never started to run; and that, accordingly, the deportation order itself is void as having been made in breach of section 15(2) of the Act of 1971 since the right of appeal was still outstanding. Simon Brown J dismissed the application. The Notice Regulations Regulation 3(1) and (4) of the Notices Regulations provides: "(1) Subject to the following provisions of this regulation, where any decision or action which is appealable . . . is taken, written notice thereof shall as soon as practicable be given in accordance with the provisions of these Regulations to the person in respect of whom the decision or action is taken. (4) It shall not be necessary fornotice to be given in compliance with the provisions of paragraph (1) if the officer or authority required by paragraph (2) to give it has no knowledge of the whereabouts or place of abode of the person to whom it is to be given." Simon Brown J decided the case against Mr Yeboah on the ground that regulation 3(4) dispensed with any need for service in his case, since at the time of the making of the decision to deport the Secretary of State had no knowledge of Mr Yeboah's whereabouts or place of abode. Regulation 6 provides: "Any notice required by regulation 3 to be given to any person may be sent by post in a registered letter or by the recorded delivery service to his last known or usual place of abode." Regulation 2(3) applies the Interpretation Act 1978 to the Notices Regulations. Section 7 of the Act of 1978 provides: "Where an Act authorises or requires any document to be served by post (whether the expression 'serve' or the expression 'give' or 'send' or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post." The Secretary of State contends that, if the judge was wrong as to the effect of regulation 3(4), even so service of the decision to deport was duly effected by sending such notice to Mr Yeboah's last known place of abode, that is to say 13 Ashbourne Road. Simon Brown J rejected this latter argument. The principal argument As I have indicated, the princiapl submisson of Sir Charles Fletcher-Cooke for Mr Yeboah is that no proper notice of the decisions to deport was given to his client as required by regulation 3(1) of the Notices Regulations. Mr Pannick, for the Secretary of State, submits that there are two routes whereby he can show that the requirements of the regulations have been complied with, namely, (1) regulation 3(4) applies to the present case and, therefore, there was no need to give any notice, and (2) there was service by post at Mr Yeboah's last known place of abode under regulation 6. I will deal with these in turn. (1) Regulation 3(4). Mr Pannick submits that the only requirement to give notice of the decision to deport is that contianed in regulation 3(1) of the Notices Regulations, which is prefaced by the words "subject to the following provisions of this regulation." Then regulation 3(4) expressly excludes any requirement to give notice if there is no knowledge of the whereabout or place of abode of the applicant. In Mr Yeboah's case there is no affidavit sworn on behalf of the Secretary of State expressly stating that the Secretary of State did not have that knowledge. But the evidence does show that inquiries had been made and that the two notices were sent by post to the last known addresses. This, says Mr Pannick, is sufficient to prove the facts which bring the case within regulation 3(4) in the absence of any suggetion by the applicant that the Secretary of State did know his whereabouts. In answer, Sir Charles submits first that regulation 3(4) is ultra vires the rule-making power in section 18 of the Act of 1971. However, he accepts that in this court that argument cannot succeed because of the decision by this court in Reg v Secretary of State for the Home Department, Ex parte Makham Singh (unreported), 9 February 1976, that the rule was intra vires. Secondly, Sir Charles submits, following the decision of Farquharson J in the case of the applicant Mr Draz that, if the Secretary of State is to rely on regulation 3(4), he must put in affidavit evidence affirmatively proving that he did not have the necessary knowledge of the applicant's whereabouts. In my judgment, there is no obligation on the Secretary of State in every case to file an affidavit specifically deposing to the lack of the necessary knowledge. The question in each case is wheter the evidence before the court is sufficient to satisfy the court that there was no knowledge of the applicant's whereabouts at the date of the decison to deport. Where, as in the present case, the evidence shows that the notices were sent to one or more addresses as being the last known place of abode and came back marked "not known," in the absence of any other evidence the only possible conclusion is that the Secretary of State did not know the man's whereabouts or place of abode. This conclusion accords with the decision of Simon Brown J in the present case and the decision of the Divisional Court in Reg v Immigration Appeal Tribunal, Ex parte Ekrem Mehmet [1977] 1 WLR 795. In that case there was no specific evidence as to the state of knowledge of the Secretary of State beyond the return of the letters through the dead letter post and it was held even so that regulation 3(4) of the Notices Regulations dispensed with any requirement for notice. I am conscious of the force of Sir Charles's submission that the making of a deportation order in a real sense affects the liberty of the individual and therefore the statutory requirement should be strictly complied with. For this reason it may well be desirable that in future where regulation 3(4) is to be relied on there should be affidavit evidence dealing specifically with the state of knowledge of the Secretary of State. But strict compliance with the requirements can be satisfied in other ways; if the evidence before the court proves on the balance of probabilities that the Secretary of State lacked the necessary knowledge as to the man's whereabouts, the strict requirements are satisfied. Therefore, in my judgment, the applicant's argument on this point fails. (2) Regulation 6. If I am wrong as to the effect of regulation 3(4) of the Notices Regulations, there remains the Secretary of State's alternative argument under regulation 6. He says that he gave notice by posting the notice by recorded delivery to Mr Yeboah's last known place of abode and therefore duly served it. Sir Charles submits that regulation 6, read in conjunction with section 7 of the Interpretation Act 1978, cannot deem service to have been effected when the letter is subsequently returned. He relies in particular on the decisions in Reg v London County Quarter Sessions Appeals Committee, Ex parte Rossi [1956] 1 QB 682 and Hewitt v Leicester Corporation [1969] 1 WLR 855. He points out that rule 4 of the Procedure Rules lays down time limits for various types of appeal. Rule 4(7) requires, in relation to an appeal against a decision to deport, that notice of appeal "be given not later than 14 days after the decision." Rule 4(11) then provides: "Where notice in writing of an action or decision is required by the [Notices Regulations] to be given then, for the purposes of this rule, that action or decision shall be deemed to have been taken -- (a) where the notice is sent by post, on the day on which it was sent; (b) in any other case, on the day on which the notice was served." Therefore, the time for appeal against a decision to deport starts to run on the day on which the notice is "sent by post." Where it not for one factor, I would have agreed with Simon Brown J that the Secretary of State's argument on this point should not succeed. The principle in Rossi's case [1956] 1 QB 682, as I understand it, is that where the principal Act makes the date of receipt of a notice crucial either for the purpose of enabling the person to whom it is addressed to take some action or for the purpose of, for example, fixing the date of valuation, section 7 of the interpretation Act 1978 cannot operate to deem that the notice has been received when it has not in fact been received. The exact processs of reasoning whereby this conclusion is reached is not entirely clear to me. But the reasoning of Parker LJ, at p 700 et seq, seems to be as follows. In a case where the date of receipt is crucial, and there is no actual receipt of the notice, there is "evidence to the contrary" which excludes the deemed receipt under section 7 of the Interpretation Act 1978. The question then is whether the principal Act, in referring to notice being "sent," means posted or actually received by the addressee. If actual receipt is necessary to enable the addressee to take some necessary step, then the word "sent" in the principal Act will be construed to mean "received" and the requirement of notice will not be satisfied. This reasoning applies to all notices to be served under regulation 3 of the Notices Regulations: under rule 4 of The procedure Rules time for appeal runs from the day on which the notice is "sent by post." Unless "sent" in the Procedure Rules means "received," in every case the already short time limited for appeal (usually 14 days) will be further curtailed. In cases such as the present, where the notice is never received, the right of appeal is destroyed completely if "sent" means "placed in the post." For these reasons, apart from one factor, there is everything to be said for applying the principle in Rossi's case [1956] 1 QB 682 to the present case. However, the judgment of Parker LJ in Rossi's case shows that, in the ultimate analysis, the question is one of construction of the principal Act, ie in the present case the construction of the Notices Regulations. During the argument of the appeal Parker LJ pointed out that it is impossible to construe the word "sent" in rule 4 of the Procedure Rules as meaning "received" so as to make such rule consistent with the rest of the Notice Regulations and Procedure Rules. Regulation 4 of the Notices Regulations requires the notice to state, amongst other things, "the time within which an appeal shall be brought." The period to be stated is 14 days from the date when the notice is "sent:" rule 4 of the Procedure Rules. If "sent" were to mean "received" it would be impossible for the notice to state "the time within which an appeal shall be brought" except by some formula such as "within 14 days after the date of receipt by you." But if such formula were to be adopted, the Secretary of State could never tell whether or not time for appeal had expired. The expiry of the time for appeal is critical to the Secretary of State since, under section 15(2) of the Act of 1971, until such expiry no deportation order can be made. Accordingly, in order to make the structure of the Act and the Rules work, it is essential that the Secretary of State should be able to know with certainty the date when the time for appeal starts to run and the date when it has expired. This cannot be achieved unless it is the posting of the notice, not its receipt, which is the start of the period for appeal. Therefore, in my judgment, there is no room to apply the Rossi principle to the Notices Regulations. On their construction the word "sent" means, and can only mean, despatched by post. I reach this conclusion with regret as it leads to the result that an immigrant who in fact never receives notice of a decision is deprived of his right of appeal. This harsh result is ameliorated in the case of all decisions save only a decision to deport: rule 5 of the Procedure Rules gives a discretionary power in special circumstances to grant a further opportunity to appeal even after the time primarily limited has expired. But rule 5(4) does not allow a further appeal against decisions to deport once a deportation order is in force. That is the present case. In such a case the only remedy of the immigrant is either to persuade the Secretary of State to make a reference to the adjudicator under section 21 of the Act of 1971 or to apply to the Secretary of State to revoke the order and, if revocation is refused, leave the United Kingdom and appeal against the refusal. In a case where the Secretary of State is satisfied that notice of the decision to deport has not been received and there has been no wilful attempt to avoid it, a reference under section 21 might well be thought appropriate. The subsidiary arguments Sir Charles submitted that the deportation order should be quashed as being a disproportionate penalty within the menaing of "proportionality" as used by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410. The disproportion relied on, as i understand it, is between Mr yeboah's offence of staying on and his expulsion from this country where his wife and his child (who is patrial) are and where he has established a successful business. I express no view on this argument beyond saying that none of those factors was known to the Secretary of State when he made the deportation order. They cannot, therefore, be relied on as a ground for quashing the order, whether or not the principle of proportionality is part of the law of England. Mr Nathan had another point. As I understand it, he suggests that at all material times an appeal has been outstanding, and therefore no deportation order could validly have been made, because Mr Yeboah is in some way entitled to the hearing of a preliminary issue under rules 8(3)(b) and 11(4) of the procedure Rules. Those rules permit the adjudicatorto consider whether or not to let the appeal continue notwithstanding that it is out of time. The point must fail because under rule 11(4) the adjudicator cannot in any event allow an out of time appeal to continue where a deportation order is in force. For these reasons, Simon Brown J rightly dismissed Mr Yeboah's application and his appeal must be dismissed. The Draz case The facts Mr Draz is an Egyptian national. He first arrived in this country on 25 March 1978 and was given leave to enter for one month as a visitor. This leave to enter was varied to permit him to remain as a student and extended from time to time until 31 October 1979. In October 1979 he was convicted for breach of the conditions, in that he had taken employment, and was recommended for deportaion. He left this country voluntarily on 30 October 1979. He re-entered this country on 4 February 1981 being given leave to enter for one month as a visitor. He applied for an extension of stay as a visitor. This application was refused. On 8 May 1981 he filed notice of appeal under section 14(1) of the Act of 1971 against this refusal asking for an extension of one month. His notice of appeal gave his address as 71 Cambridge Gardens, Ladbrooke Grove, London W 10. On 4 January 1982 notice of a hearing of the appeal to be held on 5 February 1982 was sent to 71 Cambridge Gardens by recorded delivery. The notice was returned marked "return to sender." The appeal was heard on 3 Feburary 1982, not 5 February as the notice had stated, but no point is taken on this. The adjudicator proceeded to determine the section 14(1) appeal in the absence of Mr Draz. The adjudicator relied in part on the belief that Mr Draz had not by his notice of appeal asked for an oral hearing: this was a mistake. However, the adjudicator also relied on rule 12(c) of the Procedure Rules. The adjudicator dismissed the appeal. Notice of the decision was again sent to 71 Cambridge Gardens by recorded delivery. Again it was returned unclaimed. Mr Draz now says he was throughout this period living at 71 Cambridge Gardens. On 23 March 1983 notice of a decision to deport was sent by recorded delivery to Mr Draz at 71 Cambridge Gardens. Although the Home Office was not aware of the fact, Mr Draz had left 71 Cambridge Gardens in August 1982. The notice was again returned to the sender. On 6 March 1984 the Secretary of State made a deportation order. On 25 February 1984 Mr Draz married an English girl and shortly thereafter wrote to the Home office informing them of the fact and giving his then current address. Shortly thereafter he learned of the making of the deportation order. On 26 October 1984 his solicitors applied to appeal out of time against the decision to deport. On 13 November 1984 the Home Office refused to entertain an appeal out of time under rule 5 of the procedure Rules on the ground that rule 5(4) precludes any appeal out of time when a deportation order is in force. Mr Draz then applied for judicial review of the decision of 13 November 1984, ie of the decision not to give a further right of appeal under rule 5. The Law Rule 5 gives further opportunity to appeal out of time. But rule 5(4) expressly provides that "No steps shall be taken under this rule by, or in the case of, a person in respect of whom a deportation order is for the itme being in force." Therefore Mr Draz's application for judicial review of the decision of 13 November 1984 cannot succeed unless he too can show that the deportation order made against him on 6 March 1984 is invalid. The principal arguments advanced by Mr Nathan on behalf of Mr Draz are the same as those I have already considered in the case of Mr Yeboah, ie that Mr Draz never received notice of the decision to deport and that, accordingly, such decision and the deportation order itself are void. The Secretary of State again relies on both regulation 3(4) and regulation 6 of the Notices Regulations. Farquharson J held that regulation 3(4) could not be relied on as there was no affidavit expressly deposing to the lack of the necessary knowledge on the part of the Secretary of State. For the reasons I have given, I do not think such affidavit was necessary since the notices were sent to the only address given by Mr Draz and were returned. Accordingly, in my judgment, the judge's decision on this point was incorrect. However, Farquharson J held that the necessary service under regulation 6 had been proved and for the reasons already given I think he was right in so holding. In Mr Draz's case there is a secondary argument founded on the alleged fact that Mr Draz never received notice of the hearing of his appeal under section 14(1) of the Act of 1971 against the refusal to extend the duration of his leave to enter. The subsidiary argument runs as follows. Mr Draz never received notice of the hearing of his section 14(1) appeal before the adjudicator. Under rule 24(1) of the Procedure Rules he ought to have been given such notice. In the absence of such notice, the decision by the adjudicator on the section 14(1) appeal was a nullity. Therefore, the appeal has at all times been outstanding. Section 14(1) provides that so long as such appeal is outstanding an appellant shall not be required to leave the United Kingdom. Therefore, the deportation order is void. Mr Pannick gave a number of possible answers to these submissions. It is sufficient to mention only one. Rule 12(c) of the Procedure Rules provides that an adjudicator may determine an appeal without a hearing if "satisifed . . . that it is impracticable to give [the appellant] notice of a hearing." The adjudicator relied on this rule. On the information before the adjudicator, the adjudicator was fully entitled so to do. Communications sent to the address given by Mr Draz in his notice of appeal had been returned marked "return to sender." There was no duty on the adjudicator to make further inquiries. Therefore the adjudicator was entitled to proceed without an oral hearing and the appeal was properly determined in the absence of Mr Draz. Accordingly, the foundation of Mr Nathan's subsidiary argument disappears. Therefore, in my judgment, Mr Draz's appeal should also be dismissed.

Judgment Two:

PARKER LJ: I agree.

Judgment Three:

RALPH-GIBSON LJ: I also agree.

DISPOSITION:

Appeals dismissed. Leave to appeal refused.

SOLICITORS:

Warehams, Bristol; Mills-Thomas & Co; Treasury Solicitor. DEBC3BD271BCC03: