R v. Immigration Appeal Tribunal, Ex parte Samaraweera

R v Immigration Appeal Tribunal, ex parte Samaraweera

QUEEN'S BENCH DIVISION

[1974] 2 All ER 171, [1974] 1 WLR 487

Hearing Date: 25 JANUARY 1974

25 JANUARY 1974

Index Terms:

Immigration - Appeal - Appeal to tribunal from adjudicator - Time limit for appealing - Appeal to tribunal within prescribed period - Leave to appeal granted by adjudicator on oral application - Notice of appeal to be served on tribunal as soon as practicable thereafter - Whether time limit applicable where leave given on oral application - Whether notice of appeal to be served as soon as practicable and in any event within prescribed period - Immigration Appeals (Procedure) Rules 1970 (SI 1970 No 794), rr 13(1)(2), 14(1)(2).

Held:

The applicant, who was an immigrant, sought a decision from an adjudicator in order to secure his right to remain in the United Kingdom. On 27th October 1972 the adjudicator decided against him. The applicant forthwith made an oral application to the adjudicator under rr 13(1) a and 14(2) b of the Immigration Appeals (Procedure) Rules 1970 for leave to appeal to the Immigration Appeal Tribunal. The applicant did not, however, serve his written notice of appeal on the tribunal under r 14(1) c of the 1970 rules until 19th March 1973. The tribunal declined jurisdiction on the ground that the notice had not been given within seven days of the adjudicator's decision in accordance with r 13(2) d of the 1970 rules. The applicant moved for an order of mandamus directed to the tribunal requiring it to hear his appeal, contending that, where leave had been given by an adjudicator on an oral application, r 14(2) required that notice of appeal should be given 'as soon as practicable thereafter's and accordingly the time limit provided for in r 13(2) had no application. a Rule 13(1) is set out at p 173 d, post b Rule 14(2) is set out at p 174 a, post c Rule 14(1), so far as material, provides: 'Subject to the provisions of paragraph (2) below, notice of appeal... shall be given... by completing [the prescribed from] and serving it on... the Tribunal...' d Rule 13(2) is set out at p 173 e, post Held (May J dissenting) - The requirement in r 14(2) that notice of appeal should be given 'as soon as practicable' was additional to the requirement in r 13(2) that it should be given within seven days. Accordingly, where an adjudicator had granted leave to appeal on an oral application, notice of appeal had to be given as soon as practicable thereafter and, in any event, within seven days. It followed that the applicant's notice of appeal was out of time and the motion would therefore be dismissed (see p 174 h to p 175 a and d, post).

Notes:

For appeals to the Immigration Appeal Tribunal, see 4 Halsbury's Laws (4th Edn) 515, 516, para 1025. The Immigration Appeals (Procedure) Rules 1970 lapsed on the repeal of the enabling powers contained in the Immigration Appeals Act 1969 by the Immigration Act 1971, s 34, Sch 6, which came into force on 1st January 1973. For provisions corresponding to rr 13, 14 of the 1970 rules, see the Immigration Appeals (Procedure) Rules 1972 (SI 1972 No 1984), rr 15, 16 (2 Halsbury's Statuory Instruments (3rd Reissue) 40, 41).

Introduction:

Motion for mandamus. By notice of motion dated 5th July 1973, Basil Jayanatha Samaraweera, applied for an order of mandamus directed to the Immigration Appeal Tribunal to hear and determine the appeal of the applicant against the determination, dated 27th October 1972 made by J K Brownlees Esq, an adjudicator appointed under s 1 of the Immigration Appeals Act 1969. The grounds on which relief was sought were that, as a successful application for leave to appeal had been made to the adjudicator, the tribunal had been wrong in law in the decision expressed in a letter to the applicant's solicitors dated 12th April 1973, wherein it was stated that the applicant's notice of appeal was out of time, and in refusing to hear and determine the appeal. The facts are set out in the judgment of Lord Widgery CJ.

Counsel:

Nigel Murray for the applicant. Gardon Slynn for the tribunal. PANEL: LORD WIDGERY CJ, MACKENNA AND MAY JJ

Judgment One:

LORD WIDGERY CJ. In these proceedings counsel moves on behalf of one Samaraweera for an order of mandamus directed to the Immigration Appeal Tribunal requiring it to hear and determine an appeal by the applicant against the determination of an adjudicator appointed under the Immigration Appeals Act 1969, that decision being dated 27th October 1972. The issue which this court is required to determine is purely a matter of interpretation of the Immigration Appeals (Procedure) Rules 1970 n1, and it is therefore unnecessary to go into the factual background at this stage beyond saying that the appicant, being in danger of being deported from this country, sought a decision from an adjudicator appointed under the Immigration Appeals Act 1969, the purpose of his appeal being to secure his right to remiain in this country. The adjudicatro found against him and, as I have already said, the decision of the adjudicator was given on 27th October 1972. The applicant thereupon wished to appeal from the adjudicator's conclusion to the Immigration Appeal Tribunal. In due course -- Indeed it was after a considerable lapse of time -- namely, on 19th March 1973, the applicant's advisers sought to lodge on his behalf an appeal against the adjudicator's decision. The attitude of the tribunal was that the application was out of time and out of time in a manner which the tribunal had no power to rectify; in other words that the time limit said to have been breached was one that the tribunal had no power to extend. Accordingly the tribunal declined jurisdiction and that resulted in the present application for mandamus. n1 SI 1970 No 794 In deciding within what time the applicant was required to move in order to bring his appeal before the tribunal we have to consider rr 12, 13 and 14 of the Immigration Appeals (Procedure) Rules 1970 n1. n1 SI 1970 No 794 Rule 12 provides that an appeal shall lie only with the leave of the adjudicator or the tribunal in every case, with certain exceptions there specified, which I do not find relevant to the applicant. I notice in passing that there are exceptions; in other words there are cases where leave is not required at all, but the general rule under r 12 is that an appeal shall lie only with the leave of the adjudicator or the tribunal in every case. When one passes to r 13 the cross-heading for that rule is 'Time limit for appealing'. I should say, before I look at the terms of r 13, that it is agreed between counsel, and I think rightly agreed, that a would-be appellant who seeks to go to the tribunal, and who requires leave for that purpose, can in the first instance either ask for leave from the adjudicator or ask for leave direct from the tribunal itself. If he asks for leave from the adjudicator first, then he can on a refusal, and provided he acts within the appropriate time, apply again to the tribunal for leave to appeal. Rule 13 then deals with the time for appealing. Rule 13(1) provides: 'Application to an adjudicator for leave to appeal shall be made forthwith after the making of the determination in question.' It is there clear, and no doubt for very good reasons, that the whole of these procedures contemplate a speedy determination of the issue, and one finds, therefore, that a would-be applicant who chooses to ask the adjudicator for leave to appeal must make his application forthwith after the making of the determination in question. On the other hand r 13(2) provides:

'Application to the Tribunal for leave to appeal or notice of appeal may be made or given not later than 7 days after the making of the determination in question.'

Seven days is thus to be compared with 'forthwith' in the case of an application direct to the adjudicator. Rule 14(1) is concerned with the form in which these appeals and applications may be made. I say 'appeals and applications' because r 14(5) in effect provides that if one uses a form of application for leave when it should be a notice of appeal, or vice versa, the document can be treated as having the function which it ought to have. Rule 14(1) specifies the form in which an application for leave to appeal, or a notice of appeal, shall appear. It is in fact a perfectly simple form, comparable perhaps to the sort of form one completes when applying for a driving licence. Thus taking the matter so far the would-be applicant must decide first of all whether to go to the adjudicator or the tribunal in the first instance. If he decides to go to the adjudicator he must apply forthwith and he must use the form in r 14(1), subject to an exemption in r 14(2) to which I will come in a moment. If he is successful in his application to the adjudicator we are told, and I have no reason to doubt it, that the form which he used in applying for leave goes forward to the tribunal and serves the purpose of a notice of appeal; in other words no further document is required from a successful applicant who succeeds in obtaining leave from the adjudicator. On the other hand, if the applicant fails to obtain leave from the adjudicator, he must then apply to the tribunal if he wishes to pursue the matter, and he must then, I think clearly, bear in mind the time limit in r 13(2) because I think that his application to the tribunal following his failure before the adjudicator must be made within seven days after the initial determination by the adjudicator of the issue. So far so good. It is in r 14(2) that the problems with which we are faced arise. That provides:

'Notwithstanding the provisions of paragraph (1) above, an application to an adjudicator for leave to appeal may be made orally by the applicant or by a person duly authorised by him in that behalf or, in the case of an applicant who is a minor or who is for any reason incapable of acting, by any person acting on his behalf; but in that event the requirements of paragraph (1) above shall be complied with as soon as practicable thereafter.'

What happened in the present case was that following the adjudicator's judgment an oral application for leave to appeal was made to the adjudicator and it was granted, precisely the kind of procedure contemplated by r 14(2), and the whole dispute turns on the period within which in those events the formal application under r 14(2) must be made. One argument is that r 14(2) in a sense stands on its own, that it is intended to deal with a specific instance in which the application is made orally and disposed of orally, and that the time limit, if time limit it be, in r 14(2), namely, that the form shall be filled up as soon as practicable, is the only limit which applies in cases of this kind. In order words, it is argued by counsel for the applicant that the successful oral application means that the appeal is on foot, there is no reason why in those circumstances the time limits in r 13 should be applied and it suffices if the formal matter of completing the form of application follows in an indeterminate time provided that it is as soon as practicable after the adjudicator's decision. Counsel for the tribunal on the other hand contends that the requirement that an application for leave to appeal or notice of appeal to the tribunal should be made within seven days under r 13(2) applied to the follow-up formal document under r 14(2) as well. He says that the reference in r 14(2) to that document following 'as soon as practicable thereafter' is in effect an additional restriction on the freedom of movement of the would-be appellant who, he says, must comply with both requirements. He must in other words produce his form as soon as is reasonably practicable and in any event, counsel would say, within seven days after the initial determination. I have not found this an easy case at all because the rules are not particularly clearly drafted and problems have arisen in argument. But I think in the end that what counsel for the tribunal says is right. I think that the underlying purpose of these rules is that the appropriate application should be made speedily and that there shall be produced by the applicant a form which sets out the terms on which he is seeking to support his appeal. It sets out amongst other things, his name and address, his grounds of appeal and such like. This form must appear at some stage in order that it may be the foundation of the application to the tribunal. Among the examples I have already given, if the application to the adjudicator is made accompanied by the form, as it may be, and the application is granted, then the form goes forward and is the notice of appeal. Equally, if the adjudicator refuses an application made on the form and the applicant wishes to apply to the tribunal, the same form can be used, and if he is successful with the tribunal, then that form goes forward as the notice of appeal. Again I think that where under r 14(2) the oral application is refused by the adjudicator, then the applicant, who goes to the tribunal, is going there for leave to appeal and I think that the restriction in r 13(2) applies to him. If he is successful in his oral application for leave to appeal to the adjudicator, then he no longer requires leave, but the form has to be filled up and in this instance it is fairly to be described as the notice of appeal. One asks oneself what else it is? If leave is obtained, a document is produced. The document is properly described as the notice of appeal, and so again one finds that it comes within the terms of r 13(2). In a sentence, I have come to the conclusion that counsel for the tribunal's argument is right and that the restrictions imposed by rr 13(2) and 14(2) are in the present type of case in effect cumulative. The applicant must comply with both, and as this applicant clearly did not comply with that imposed by r 13(2), that is sufficient to justify the conclusion of the tribunal and thus to defeat the application for mandamus, which I would refuse.

Judgment Two:

MACKENNA J. The closing words of r 14(2) provide if an oral application is made to the adjudicator, the requirements of r 14(1) shall be complied with as soon as practicable. Tht means that the appellant must file his application to the tribunal for leave to appeal, as soon as practicable, if he has been refused leave by the adjudicator and must the his notice of appeal as soon as practicable if he has been given leave. I read r 13(2) as applying among others to cases where the appellant applies for leave to the adjudicator and gets it. In that case he must file his notice of appeal within seven days. The question is whether these words in r 14(2) 'as soon as practicable' supersede in cases convered by that paragraph the provisions of r 13(2), which say that the application or the notice of appeal may be given not later than seven days after the determination in question, meaning, I think, that they must be given or made within that period. I accept counsel for the tribunal's argument that the two rules are to be read together and that in the cases covered by r 14(2) the appellant must make his application or give his notice of appeal as soon as practicable and in any event within seven days. I do not read r 14(2) as providing a longer period for the notice of appeal in the case of an oral application for leave to appeal made to the adjudicator. If this had been intended I should have expected r 14(2) to have contained the words 'notwithstanding r 13(2)'. Nobody can suggest any reason why a different, and a longer, period should be prescribed where an oral application under the later rule is made. Speaking for myself, I regret that these important provisions should be so obscurely worded and I have no great confidence that my conclusion is the right one. A possible alternative construction might be that r 13(2) applies only to cases where the application has been made in the first instance to the tribunal, but that construction too would have its difficulties. I agree with Lord Widgery CJ that the application fails.

DISSENT By-1: MAY J.

DISSENT-JDGMT-1:

MAY J. It is with diffidence that I have reached a firm conclusion on the proper construction of the relevant regulations contrary to that expressed by Lord Widgery CJ and MacKenna J. In construing them I would draw attention, first, to r 12 and point out that appeals under the rules may be of two types: one requiring the leave of either the adjudicator or the tribunal; the other as of right requiring the leave of neither. Secondly, I notice the headings to rr 13 and 14 respectively: r 13 'Time for appealing'; r 14 'Notice of appeal and application for leave to appeal'. Thirdly, I notice para (5) of r 14, which as I see it in every case equates an application for leave to appeal with a notice of appeal. Fourthly, I agree with what has fallen from MacKenna J that these regulations are badly drafted and accordingly I have no doubt that if they can be construed in favour of a would-be appellant, then they should be so construed. It is, I think, unnecessary for me to go through the regulations in detail but enough for me to state the scheme of procedure which in my view they lay down. In cases where leave to appeal is not required, then by r 13(2) notice of appeal must be given to the tribunal within seven days, and must be given on the appropriate form, form 2 in the schedule to the rules, which, be it noted in passing, is headed 'Notice of appeal of application for leave to appeal from adjudicator' and has to parts: the first part a notice of appeal containing grounds of appeal and stating whether or not a hearing of the appeal is requested; the second part being relevant only when the form is used as an application for leave to appeal. So much then for cases where leave is not required. Where leave is required the application may be made either to the adjudicator or to the tribunal. If it is made to the adjudicator, it must by r 13(1) be made forthwith after the making of the determination. It may be made to the adjudicator either in writing or orally. If in writing, then it must be made on the form to which I have already referred. If the application is granted, that is enough. The written application stands as the notice of appeal and the appeal goes forward. If the application on the form is refused, then the applicant still has the further opportunity of going to the tribunal and seeking leave from the tribunal. That must be done within the seven days laid down by r 13(2) and on the form which has already been put before the adjudicator. If the tribunal grant leave to appeal, then the appeal goes forward in the normal way. If the tribunal refuse leave, that is the end of the matter. However, if the application to the adjudicator for leave is made orally and is refused, then again the applicant has a second opportunity of seeking leave, from the tribunal. He must go to the tribunal within seven days as laid down by r 13(2) and he must apply to the tribunal on the form. He cannot apply to the tribunal orally. If the application is oral and is granted by the adjudicator, then in my judgment the applicant does not have to go to the tribunal at all, save for the substantive hearing of the appeal. All that has to be done is, as it were, to fill out the application for leave by giving the formal grounds of appeal, which will be apparent to the adjudicator in any event because he has just been hearing the application against which it is sought to appeal. The staff sitting with the adjudicator will know that leave has been granted and that the appeal is on foot. All that is required is for the applicant to fill out his granted application by giving his formal grounds which he must give on the form, and he must give them as soon as practicable thereafter. That may well be outside the period of seven days for persons within the country, or the period of 28 days i respect of persons outside the country, particularly, for instance, if the applicant happens to be a minor. Finally, if the application is in the first place to the tribunal, then that has to be made within seven days on the form under r 13(2). In my judgment the underlying purpose of the rules is not so much to get the form completed and before the tribunal within the time limited, but to get an appeal started or refused within the time limited by r 13(2). For my part, therefore, I would accept counsel for the applicant's argument as to the proper construction of the rules and pass to consider whether or not in the circumstances of this case r 14(2) was in fact complied with. But having regard to the different view taken by Lord Widgery CJ and MacKenna J that question does not now arise.

DISPOSITION:

Mandamus refused.

SOLICITORS:

Emerson Mott, Basingstoke (for the applicant); Treasury Solicitor. C01: