R v. Immigration Appeal Tribunal, Ex parte Jones (Ross)

R v IMMIGRATION APPEAL TRIBUNAL EX PARTE JONES (ROSS)

Court of Appeal (Civil Division)

[1988] 1 WLR 477, [1989] Imm AR 210

Hearing Date: 5 November, 8 December 1987

8 December 1987

Index Terms:

Immigration -- Immigration Appeal Tribunal -- Oral hearing -- Refusal of entry to Commonwealth citizen with entry clearance -- Dismissal of appeal by adjudicator after full hearing -- Appeal tribunal dismissing appeal without oral hearing -- Whether rules providing for determination of appeals without oral hearing ultra vires -- Immigration Act 1971 (c 77), s 22(1) -- Immigration Appeals (Procedure) Rules 1984 (SI 1984 No 2041), r 20(c)

Held:

The applicant, a New Zealand citizen who had married a British citizen, arrived at Heathrow Airport on 17 March 1985 with an entry clearance obtained in New Zealand. He was refused leave to enter the United Kingdom by an immigration officer on the ground that he had failed to disclose material facts in obtaining entry clearance. The applicant's appeal to an adjudicator was dismissed after a full hearing at which the applicant was represented and he himself gave evidence. Under section 20(1) of the Immigration Act 1971 the applicant appealed to the appeal tribunal. On 5 July 1985 the tribunal informed his representatives that no further evidence in writing had been submitted on behalf of the Secretary of State but that the applicant could make further representations if he so wished and that the tribunal might at any time after 19 July determine the appeal without a hearing pursuant to rule 20(c) of the Immigration Appeals (Procedure) Rules 1984. There was no response to that letter. The tribunal dismissed the appeal. The applicant applied for judicial review of that decision claiming an order of certiorari. The judge dismissed the application rejecting the applicant's contention that rule 20(c) was ultra vires of section 22(1) of the Act of 1971 (Immigration Act 1971, s 22(1):) On appeal by the applicant:-- Held, dismissing the appeal, that rule 20(c) of the Immigration Appeals (Procedure) Rules 1984, giving a discretion to the appeal tribunal to determine appeals without oral hearings, was in no way inconsistent with section 22(1) of the Immigration Act 1971; that the expression "hearing and determining appeals" in paragraph 11 of Schedule 5 to the Act of 1971 did not involve an oral hearing in all circumstances and that, accordingly, rule 20(c) of the Rules of 1984 was not ultra vires of the Act of 1971 and the judge was right in dismissing the application for judicial review of the appeal tribunal's decision (post, pp 480G--H, 481B--C, 482C--E, 483C). Dictum of Hamilton LJ in Rex v Local Government Board, Ex parte Arlidge [1914] 1 KB 160, 191, CA applied. Decision of Simon Brown J affirmed.

Cases referred to in the Judgment:

Rex v Local Government Board, Ex parte Alridge [1914] 1 KB 160, CA; sub nom Local Government Board v Arlidge [1915] AC 120, HL(E)

Cases cited in the Judgment:

Reg v Immigration Appeal Tribunal, Ex parte Ekrem Mehmet [1977] 1 WLR 795; [1977] 2 All ER 602, EC. Reg v Immigration Appeal Tribunal, Ex parte Zaman & Zaman [1982] Imm AR 61 Ridge v Baldwin [1964] AC 40; [1963] 2 WLR 935; [1963] 2 All ER 66, HL(E)

Introduction:

APPEAL from Simon Brown J The applicant, Ross Wayne Jones, a citizen of New Zealand, married on 14 January 1985, in New Zealand, a British citizen 30 years his senior. He obtained entry clearance and arrived at Heathrow Airport on 17 March 1985. He was refused leave to enter on the ground that to obtain entry clearance he had failed to disclose material facts. The applicant appealed to an adjudicator against that refusal. On 30 May 1985, the adjudicator, Mrs Symons, after a full hearing where the applicant was represented and himself gave evidence, dismissed his appeal. He gave notice of appeal to the Immigration Appeal Tribunal. On 5 July 1985 the tribunal wrote to the applicant's representatives stating that the applicant had been granted leave to appeal, that the respondent, the Secretary of State for the Home Department, had submitted no additional evidence and that the applicant had the right to make further representations, if he wished, which should be received by 19 July. The letter concluded that the tribunal might at any time thereafter decide to determine the appeal without a hearing withing rule 20(c) of the Immigration Appeals (Procedure) Rules 1984. There was no response to that letter. The tribunal dismissed the appeal. An application for judicial review of that decision seeking an order of certiorari was dismissed by Simon Brown J rejecting the contention that rule 20(c) of the Rules of 1984 was ultra vires of section 22(1) of the Immigration Act 1971. By a notice of appeal dated 31 October 1986 the applicant appealed on the grounds, inter alia, that (1) the judge erred in law in holding that there was nothing in the legislative framework of the Act of 1971 dealing with appeals, either expressly or by necessary implication, that required a hearing in all appeals; (2) the substantive rights of appeal given by Part II of the Act were rights to full oral hearings and that there was no power under section 22 of the Act to take away such rights by subsidiary legislation; and (3) consequently, rule 20(c) of the Rules of 1984 was ultra vires of section 22 of the Act of 1971. On 5 November 1987 the court decided to dismiss the appeal but to give reasons later.

Counsel:

Alper Riza for the applicant; Robert Jay for the Secretary of State for the Home Department.

Judgment-READ:

Cur adv vult 8 December. The following judgments were handed down. PANEL: Kerr and Russell LJJ and Sir Denys Buckley

Judgment One:

RUSSELL LJ: On 5 November 1987 the court dismissed this appeal and we now give our reasons. The appeal raises a procedural point in relation to the administration of immigration control. Put shortly, it is whether, in disposing of an appeal from an adjudicator, the Immigration Appeal Tribunal may dispense with an oral hearing. It is important to observe at the outset that the applicant does not attack the exercise of a discretion by the tribunal; the submission is that the regulations which purport to give the tribunal such discretion are ultra vires the enabling statute, namely the Immigration Act 1971. The factual background reflects no credit upon the applicant, and Simon Brown J commented that there did not appear to be the faintest merit in the applicant's substantive case. As the judge observed, the applicant had, over the years, played fast and loose with the United Kingdom immigration authorities. That said, however, if there is any merit in the point taken by the applicant, he is entitled to take advantage of it. All that need be recounted is that on 30 May 1985 an adjudicator, in a very closely reasoned and factually detailed decision, dismissed the applicant's appeal from a refusal of an immigration officer to give him leave to enter the United Kingdom after his arrival at Heathrow Airport on 17 March 1985. The applicant then had entry clearance, he being a citizen of New Zealand who had married a citizen of the United Kingdom over 30 years his senior. The immigration officer refused leave to enter because the applicant had failed to disclose material facts in obtaining entry clearance. The evidence in support of the finding was quite overwhelming and after a full hearing at which the applicant was represented and at which he gave evidence before the adjudicator, the decision was upheld. The applicant exercised his right of appeal from the adjudicator. By virtue of section 22(5)(b) of the Act of 1971 the Immigration Appeal Tribunal was obliged to grant leave because at the time of refusal of leave to enter the applicant did hold an entry clearance, albeit obtained by deception. Thereafter, on 5 July 1985 the tribunal wrote to the applicant's representative at the United Kingdom Immigrants Advisory Service in the following terms: "The applicant has been granted leave to appeal to the tribunal against the adjudicator's determination of his appeal. No evidence in writing has been submitted by the respondent additional to that which was before the adjudicator. You have the right to make further representations if you wish to do so. Such representations must be received in this office not later than 19 July 1985. The tribunal may at any time thereafter decide to determine the appeal without a hearing under the provisions of rule 20(c) of the Immigration Appeals (Procedure) Rules 1984 . . ." To that letter there was no response. Accordingly on 25 July 1985 the tribunal dismissed the applicant's appeal, and in its determination and reasons, having set out shortly the procedural history concluded: "No further evidence in writing has been submitted by the respondent and, having carefully considered the matters put forward in support of the appeal by the [applicant] (the grounds of appeal and accompanying letter from the British Consular General in Auckland) the tribunal is of the opinion that these matters do not warrant an oral hearing and consequently the tribunal is disposing of this appeal under the provisions of rule 20(c) of the Immigration Appeals (Procedure) Rules 1984. In the tribunal's opinion the adjudicator's findings of fact were not against the weight of the evidence and were properly supported by it. Her determination discloses no misdirection in law or wrong exercise of discretion. The appeal is dismissed." Mr Riza, on behalf of the applicant, submitted that the whole framework of the immigration legislation, as it has developed, is to provide maximum rights of appeal to those who have entry clearance at the time of their entry to the United Kingdom. Hence, submitted Mr Riza, there is the special provision to be found in section 22(5)(b) dispensing with the need for leave to appeal in such cases. It is with that provision in mind, submitted counsel, that one must go to section 20(1) and section 22(1) to determine whether rules of procedure may be made excluding oral appeals. Section 20(1) provides: "Subject to any requirement of rules of procedure as to leave to appeal, any party to an appeal to an adjudicator may, if dissatisfied with his determination thereon, appeal to the appeal tribunal, and the tribunal may affirm the determination or make any other determination which could have been made by the adjudicator." Section 22(1), so far as it is material, provides: "The Secretary of State may make rules (in this Act referred to as 'rules of procedure') -- (a) for regulating the exercise of the rights of appeal conferred by this Part of this Act; (b) for prescribing the practice and procedure to be followed on or in connection with appeals thereunder, including the mode and burden of proof and admissibility of evidence on such an appeal; . . ." The current rules of procedure made pursuant to the statute are the Immigration Appeals (Procedure) Rules 1984, and the particular rule which, it was contended, is ultra vires the enabling statute, namely the Act of 1971, is rule 20. That rule provides, so far as it is material to this appeal: "The tribunal may dispose of an appeal without a hearing if . . . (c) leave to appeal to the tribunal is granted pursuant to section 22(5) of the Act and the tribunal is of the opinion, after giving the appellant an opportunity of responding to any evidence submitted in writing by the respondent, that the matters put forward in support of the appeal do not warrant a hearing." Counsel for the applicant submitted that the obligatory granting of leave pursuant to section 22(5)(b) is inconsistent with any procedural rule which seeks to limit in any way the right of appeal consequent upon that leave, and that therefore rule 20 derogates from the right provided by section 22. For my part I am quite unable to accept this submission and I can see nothing in the rule which gives a discretion to the tribunal that is ultra vires the Act. Of course, should the tribunal act perversely or unfairly in the exercise of its discretion pursuant to rule 20, that decision would always be open to judicial review, though as emphasised earlier in this judgment such is not suggested in the instant appeal. As an alternative submission -- and one which was not taken before Simon Brown J -- Mr Riza directed our attention to section 12 of the Act of 1971. That section is concerned with the appointment, inter alia, of members of the Immigration Appeal Tribunal by the Lord Chancellor, and by reference to Schedule 5 to the Act makes provision for proceedings before the tribunal. Paragraph 11 of Schedule 5 provides: "For the purpose of hearing and determining appeals under Part II of this Act or any matter preliminary or incidental to any such appeal, the tribunal shall sit at such times and in such place or places as the Lord Chancellor may direct, and may sit in two or more divisions." Counsel submitted that the wording of the paragraph envisages an oral hearing and that the use of the word "hearing" in the paragraph is inappropriate to any determination of an appeal by reference to documents alone. The question to be answered is whether the word "hearing" necessarily and in all circumstances involves an oral hearing. In my judgment it does not and in so concluding I derive support from the words of Hamilton LJ in Rex v Local Government Board, Ex parte Arlidge [1914] 1 KB 160, 191. That case was concerned with a local government board which by virtue of the Housing, Town Planning, &c Act 1909 was empowered to make rules of procedure in the determination of appeals made to it. The board dismissed an appeal without giving the appellant an opportunity of being heard. In a dissenting judgment subsequently upheld by the House of Lords, sub nom Local Government Board v Arlidge [1915] AC 120, Hamilton LJ said, at pp 191-192: "I think, therefore, that this claim is only part of the general claim for a 'hearing' coram judice, for a viva voce appeal for the right to stand in person before the judgment seat. In my opinion, the question whether the deciding officer 'hears' the appellant audibly addressing him or 'hears' him only through the medium of his written statements, is in a matter of this kind one of pure procedure. The practice of the High Court, past and present, as to hearing motions on affidavits and taking evidence before special examiners or the examiners of the court, shows that there is nothing universally essential in the judge's seeing and hearing the witnesses for himself . . . The fact is that for such appeals as are here in question one scheme of procedure may be better than the other, but both the oral and the written scheme remain rival procedures still and the Act leaves the board free to elect between them." Mr Jay, on behalf of the Secretary of State, submitted that even if Schedule 5 does contemplate an oral hearing -- and he was inclined to concede that it does -- it does not in any way prohibit the disposal of an appopriate appeal without such a hearing. Indeed, Mr Jay submitted that it is only if by necessary implication one can read into the statute a mandatory requirement of an oral hearing that the argument of derogation from the enabling provision can be valid. No such inference can be drawn from the wording of either section 20 or section 22 of the Act of 1971, submitted Mr Jay. I agree with that submission. Two further points were taken by Mr Riza. In an effort to demonstrate that an appeal otherwise than by way of oral hearing is an innovation out of tune with past legislation, he referred us to the Immigration Appeals Act 1969. That statute was wholly repealed by the Act of 1971, and, for my part, I derive no assistance from it. In my judgment there is certainly nothing in the Act of 1969 that lends support to the submissions of Mr Riza. Finally, counsel for the applicant relied upon section 22(3) which provides, "The rules of procedure shall provide that any appellant shall have the right to be legally represented." It was submitted that this provision is inconsistent with anything other than an oral hearing. I disagree. There are many illustrations in our jurisprudence of decisions being taken and rulings made where parties are legally represented but present their respective cases on paper. In my judgment the policy of the legislation with which this appeal is concerned is to provide for a system of appeal which normally will be by way of oral hearing. However, in appropriate cases that hearing may be dispensed with by virtue of the procedural rules made under the Act. I can discern nothing in the overall structure of the statute or in any provision of it that expressly or by implication requires an oral hearing in all appeals. Accordingly I am firmly of the opinion that the arguments advanced on behalf of the applicant have no merit. In my judgment Simon Brown J was right to hold that rule 20 was not ultra vires the Act of 1971 and that the applicant was not entitled to judicial review of the dismissal of this appeal to the Immigration Appeal Tribunal. It follows that the appeal to this court fails and as indicated at the outset, has been dismissed.

Judgment Two:

KERR LJ: I agree that this appeal should be dismissed for the reasons stated in the judgment of Russell LJ. I only add a few words in relation to the Immigration Appeals Act 1969 which formed a major part of Mr Riza's argument. His submission was that an examination of the express provisions of the Act of 1969 dealing with the power to dispense with oral hearings by subordinate legislation showed that no such power could be extracted by implication from the provisions of the Immigration Act 1971. The Act of 1969 had been in substantially different terms and was repealed entirely by the Immigration Act 1971. The Act of 1969 is therefore of no assistance to the construction of the Act of 1971. But Mr Riza sought to rely on it by analogy and in order to demonstrate what -- as he submitted -- could be extracted from the legislative history. His arguments on these lines were however plainly fallacious. Indeed, in my view they demonstrated the contrary of what he sought to prove. Mr Riza pointed out that the detailed regulation making powers which had been contained in section 11(2) of the Act of 1969 had provided expressly for powers to dispense with oral hearings of appeals in some cases, in particular under paragraphs (f), (h) and (k). In contrast to these provisions he pointed out that the regulation making powers conferred by section 22(1) of the Act of 1971, which Russell LJ has quoted, were in merely general terms, and without any express reference to dispensing with oral hearings. He then drew attention to paragraph 11 of Schedule 5 to the Act of 1971, which Russell LJ has also quoted, which refers expressly to the "hearing" of appeals by the tribunal, and states that it "shall sit at such times and in such place or places as the Lord Chancellor may direct . . ." Mr Riza's submission was that as a matter of statutory construction this reference to "hearings" by the tribunal in Schedule 5 to the Act of 1971 was inconsistent with any power to make regulations for appeals without an oral hearing pursuant to section 22(1) of that Act. I respectfully agree with the analysis of Russell LJ that these provisions are in no way necessarily inconsistent with each other. In addition, however, what Mr Riza overlooked entirely was paragraph 11 of Part II of Schedule 1 to the Act of 1969. This had been in precisely the same terms as paragraph 11 of Schedule 5 to the Act of 1971. It was therefore obviously consistent with the express power in section 11(2) of the Act of 1969 to make regulations dispensing with oral hearings in certain circumstances. It follows that in so far as the wording of the Act of 1969 might have been of any relevance, it demonstrates that Mr Riza's construction of the Act of 1971 is unsound.

Judgment Three:

SIR DENYS BUCKLEY: I entirely agree with the reasons given by Russell LJ in his judgment in this case. There is nothing I can usefully add.

DISPOSITION:

Appeal dismissed. No order as to costs. Leave to appeal refused.

SOLICITORS:

Winstanley-Burgess; Treasury Solicitor.

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