R v. Immigration Appeal Tribunal, Ex parte Suleman

R v IMMIGRATION APPEAL TRIBUNAL Ex Parte SULEMAN, No.

325/75, TH/3517/75

Queen's Bench Division

[1976] Imm AR 147 HEARING-DATES: 6 May 1976 6 May 1976

Index Terms:

Notice of appeal -- Time limit for appealing -- Immigration Appeal Tribunal -- When time begins to run -- Determination of adjudicator reserved after hearing evidence and delivered at later sitting attended by parties' representatives -- Determination subsequently posted to appellant by appellate secretariat -- Whether the 14 days' limited time for appeal to Tribunal ran from delivery of determination at sitting or from date of its receipt by appellant -- Whether sitting at which determination delivered was a 'hearing' -- Immigration Appeals (Procedure) Rules 1972 (SI 1972 No 1684), rr 15(1)(2)(3)(4), 39(1)(2)(3).

Held:

On a true construction of r 15(4) of the Immigration Appeals (Procedure) Rules 1972, which had to be read with r 39, the time limit of 14 days for making application to the Tribunal for leave to appeal or for giving notice of appeal (under r 15(2)) ran from the day on which the appellant or his representative first learnt or could have learnt of the adjudicator's decision. Accordingly when a determination was delivered at a sitting which was attended by the appellant or his representative -- whether or not the determination had been reserved by the adjudicator -- that determination was "pronounced at a hearing" in accordance with sub-para (a) of r 15(4), and the time limit of 14 days ran from the date of that hearing. On this construction of the rule the appellant would have the same amount of time in which to decide whether or not to appeal further as would an appellant who, under sub-para (b) or r 15(4), first learnt of the adjudicator's decision when receiving the determination document referred to in r 39(2). (See p 151, post.) The Court so held when dismissing this application for certiorari to quash the decision of the Immigration Appeal Tribunal that an appellant's (the present applicant's) application to the Tribunal for leave to appeal from a decision of an adjudicator was out of time under r 15(2) of the Immigration Appeals (Procedure) Rules 1972; the Tribunal had so held because the application was received more than 14 days after the adjudicator dismissed the appellant's appeal in a determination reserved at the conclusion of the evidence and delivered some days later at a sitting attended by the appellant's representative.

Introduction:

The facts and the relevant rules are set out in the judgment of DONALDSON J, which is reported below.

Counsel:

E. Tabachnik for the applicant. Harry Woolf for the respondent. PANEL: Lord Widgery CJ, Donaldson and Boreham JJ.

Judgment One:

DONALDSON J: This application concerns the time limits for appealing against the decision of an adjudicator under the Immigration Appeals (Procedure) Rules 1972. The relevant facts are few and simple. Miss Azmina Amirali Dawood Suleman, who is a citizen of Tanzania, arrived in the United Kingdom in November 1971. She was told that she could remain as a visitor for 6 months. She obtained two extensions, but in January 1975 was refused any further extension. She then appealed to Sir John Cotton, an adjudicator, who heard evidence and argument on 8 July 1975. He took time to consider the matter, and on 17 July 1975 he read his determination in the presence of Mr Marwaha of the United Kingdom Immigrants Advisory Service, representing Miss Suleman, and of Mr Anthony, representing the Home Office. The adjudicator upheld the refusal to grant Miss Suleman any further extension. The adjudicator's clerk posted a copy of this determination to Miss Suleman on 21 July 1975, and it was received by her on 25 July. On 28 July Miss Suleman wrote a letter giving notice of appeal to the Immigration Appeal Tribunal. That letter was posted on 31 July and received by the Tribunal on 4 August. Rule 15(2) of the Immigration Appeals (Procedure) Rules 1972 provides:

"Application to the Tribunal for leave to appeal or notice of appeal may be made or given not later than 14 days after the determination in question."

If the relevant date for the determination was 25 July when Miss Suleman received a copy of the determination, then the notice of appeal was in time. If however it was 17 July when the adjudicator read the determination, the notice of appeal was out of time. The Immigration Appeal Tribunal considered this matter and held that the notice was out of time. Accordingly it declined to consider Miss Suleman's appeal on the merits, and it is that decision which has been challenged in these proceedings. Counsel who appeared for Miss Suleman accepted that in this Court we are bound to hold that r 15(2) goes to the jurisdiction of the Tribunal. However he wished to reserve the right to argue elsewhere that this is not the case and that the decision of this Court in R v Immigration Appeal Tribunal, ex p Samaraweera n1 is wrong in law. n1 [1974] 2 All ER 171; [1974] Imm A R 102. Subject to that point, with which we are not of course concerned, the answer to this problem in my judgment depends on the true construction of r 15(4), which has to be read with r 39. Rules 15(4) is in the following) terms:

"In this Rule any reference to a determination is a reference -- (a) where it is pronounced at a hearing in the presence of the appellant or his representative, to its pronouncement; (b) in any other case, to the sending to the appellant in accordance with Rule 44, or to the delivery to the appellant, of a copy of the document, referred to in Rule 39(2), recording the determination."

Rule 39 provides as follows: "(1) Where there is a hearing of an appeal and the appellate authority does not reserve the determination on the appeal, the authority shall pronounce the determination and the reasons therefor at the conclusion of the hearing. (2) Whether or not paragraph (1) above applies, the determination of any appeal shall be recorded by the appellate authority in a document signed by the adjudicator or, as the case may be, the president or presiding chairman of the Tribunal; and the reasons for the determination shall be set out therein. (3) The appellate authority shall, as soon as practicable, cause a copy of the document referred to in paragraph (2) above to be sent to every party to the appeal." The essential issue therefore between the parties is whether the proceedings at which Sir John Cotton read his determination in the presence of Miss Suleman's representative can properly be described as a hearing. If it can be so described, r 15(4)(a) applies and the 14-day time limit ran from 17 July. If it cannot be so described, the time limit ran from 25 July. Mr Tabachnik pointed out, rightly, that the word "hearing" is not defined in the Rules. Furthermore it is not a technical term of precise meaning. He referred to University Motors Ltd v Barrington n2. It has therefore to be construed in the context of the scheme of the Rules. These provide for the determination of proceedings without a hearing in the circumstances described in rr 12, 20 and 35(1). In all these instances the essence of the matter is that there is no opportunity for the evidence and submissions of the appellant to be heard or no point in their being heard. "Hearing" in these Rules, he submitted, must mean that it is the appellate authority which hears -- not the appellant. When Sir John Cotton gave his determination, the reverse was of course the case. It was the appellant who was doing the hearing. The word, in Mr Tabachnik's submission, should have the same meaning throughout the Rules. n2 [1939] All ER 630, CA Counsel referred to a passage from the judgment of the Court delivered by CLAUSON, LJ, at p 632: "The phrase 'a hearing' is somewhat vague, and is susceptible of different meanings in various contexts. Perhaps the best example that can be given to show that that is so is the case which was cited in the House of Lords, which it is unnecessary to go into at length, Green v Penzance (Lord) ((1881), 6 App Cas 657), where, in a particular context, the verb 'to hear' was decided to cover, not only the occasion on which the judicial officer in that case dealt with the case (if I may use that expression), but also all occasions on which he was performing the judicial functions vested in him under the particular statute in question. It is material to this case only as showing that it is impossible to come to a sound conclusion as to the meaning of the word 'hearing' in its application unless the particular circumstances of each case are given careful consideration." Next Mr Tabachnik turned to r 39(1). This in his submission contemplated that where there is a hearing, that is the parties are heard, the appellate authority has a choice whether to give an extempore determination at once upon the conclusion of the hearing or to reserve its decision. The Rules, as he submitted, did not contemplate a further sitting of the appellate authority with the parties or their representatives present if the sole purpose was to announce a determination. It followed to course that r 15(4)(a) refers to an extempore determination at the conclusion of the hearing, and that was not this case. Finally, Mr Tabachnik pointed out that if every sitting of the appellate authority is properly to be described as a hearing, subject of course to the parties and their representatives being invited to attend or entitled to attend, then the words "at a hearing" in rule 15(4)(a) are otiose. Mr Woolf, who appeared for the respondents, submitted that the matter was concluded by Sir John Cotton's affidavit in which he stated that "after hearing the evidence and submissions I adjourned the hearing for determination". I am afraid I must disagree. The facts are not in dispute. Sir John Cotton's choice of words, or perhaps the choice of words of his advisers, cannot in my judgment affect Miss Suleman's rights. However Mr Woolf had some rather better arguments. He pointed out that if Mr Tabachnik was right, the proceedings on 17 July would have been transformed into a hearing within the meaning of the Rules, and r 15(4)(a) would have applied if the adjudicator had simply said to the applicant's representative: "Is there anything which you would like to add?" This certainly involved a very refined distinction, but really is inherent in Mr Tabachnik's construction of the Rules. In Mr Woolf's submission the scheme of the Rules was that every appellant should have 14 days in which to give notice of appeal, and that time should run from the moment when he or his representatives first learnt or could have learnt of the decision. Consistently with this approach r 15(4)(a) applied when the appellant or his representative first learnt of the determination of the appellate authority by attending a sitting of that authority. A "hearing" in this context meant simply a sitting which the appellant or his representative was entitled to attend. Rule 15(4)(b) applied in all other cases because then the appellant would first learn of the determination when he received a copy of the determination document. Although I was at first strongly attracted to the argument for the applicant (in fact not to put too fine a point on it, I though it was right), I have come to the conclusion that it is wrong. Mr Woolf's submissions lead to all appellants being treated alike in the sense that all have the same amount of time in which to decide whether or not to appeal. Mr Tabachnik's construction leads to a fortuitous extension of time for those whose cases happen to be disposed of by reserving the determination and communicating it in the first instance at a sitting of the appellate authority: members of that class, and that class alone, would have 14 days plus the interval between the sitting and the delivery to them of a copy of the determination in which to make up their minds whether or not to appeal. I can see neither rhyme nor reason in this. Miss Suleman may well have cause to complain that her representative did not explain the time limits to her and that it was for this reason that she was out of time. But we have not heard Mr Marwaha's explanation or view of the facts, and of course it would be quite wrong for me to express any view on that aspect, which in any event is irrelevant to any arguments which are before us. For the reasons which I have expressed I would dismiss the application.

Judgment Two:

BOREHAM J: I agree.

Judgment Three:

LORD WIDGERY CJ: I agree also.

DISPOSITION:

Certiorari refused.

SOLICITORS:

Stanley Sovin; Treasury Solicitor.