R v. Immigration Appeal Tribunal, Ex parte Kandasamy Jeyaveerasingham

R v IMMIGRATION APPEAL TRIBUNAL Ex parte KANDASAMY JEYAVEERASINGHAM, TH/576/75

Queen's Bench Division

[1976] Imm AR 137

Hearing Date: 5 April 1976

5 April 1976

Index Terms:

Appeal -- Leave to appeal to Tribunal -- Rules of Procedure -- Whether rule providing for need for leave to appeal generally ultra vires the Immigration Act 1971 -- Whether discretion to grant leave when no arguable point of law (or other statutory exceptions) involved -- Assessment by Tribunal of issues raised -- Discretion whether or not to consider fresh evidence in reaching decision whether to grant leave -- Immigration Act 1971, s 20(1), s 22(5) -- Immigration Appeals (Procedure) Rules 1972, (SI 1972 No 1684), r 14(1), (2)(a).

Immigration Rules -- Appeals to the Tribunal -- Procedure Rules relating to leave to appeal -- Need for leave generally -- Exceptions including arguable point of law -- Whether requirement of leave incorporated in Procedure Rules ultra vires the Immigration Act 1971 -- Whether discretion to grant leave when no arguable point of law (or other statutory exception) involved -- Immigration Act 1971, s 20(1), s 22(5) -- Immigration Appeals (Procedure) Rules 1972, (SI 1972 No 1684), r 14(1), (2)(a).

Held:

The provision in rule 14 of the Immigration Appeals (Procedure) Rules 1972 that an appeal to the Tribunal from a determination by an adjudicator should lie only with the leave of the adjudicator or of the Tribunal in the circumstances set out in para (1) of r 14 was not ultra vires the Immigration Act 1971; for s 20(1) of the Act made it clear that Parliament contemplated that procedure rules should deal (inter alia) with the need for leave to appeal, and the general effect of r 14 was to require leave to appeal generally; there was no foundation for an argument that the effect of para (2) of r 14 was to provide that there should be no appeal to to Tribunal except on an arguable point of law (or by virtue of s 22(5) of the Immigration Act 1971 and under sub-para (b) of r 14(2)). Furthermore, the Tribunal was not required to look at any additional or fresh evidence when considering whether to grant leave; all the Tribunal had to do in the first instance was to assess the issues which were raised, and having assessed the issues in the instant case it was perfectly proper for the Tribunal as a matter of discretion to take the view that it would not grant leave to appeal. The Court so held when refusing the application of a citizen of Sri Lanka for an Order of Certiorari to quash a determination of the Immigration Appeal Tribunal refusing him leave to appeal from a decision of an adjudicator under the Immigration Act 1971.

Introduction:

The facts and the relevant statutory provisions appear in the judgment of LORD WIDGERY CJ, reported below.

Counsel:

K. S. Nathan for the applicant. Harry Woolf for the respondent. PANEL: Lord Widgery CJ, Thompson and Kenneth Jones, JJ.

Judgment One:

LORD WIDGERY CJ: In these proceedings Mr Nathan moves on behalf of one Kandasamy Jeyaveerasingham for an Order of Certiorari to quash a determination of the Immigration Appeal Tribunal refusing this applicant leave to appeal from a decision of an adjudicator under the Immigration Act 1971. The applicant came to this country from Sri Lanka as long ago as 1971 and, after certain vicissitudes that one need not go into in detail, he obtained permission to stay in this country for 4 years to complete a 4-year course, and when that course was maturing the time came when he wished to apply for a further extension. Having made application, it was refused by the Secretary of State. The date of the refusal is 29 January 1974. The reason for the refusal is:

"You have applied for your leave to enter to be varied so as to permit you to remain in the United Kingdom as a student of civil engineering at the North East London Polytechnic but, taking account of all the relevant facts, the Secretary of State is not satisfied you will leave the country on completion of any course of study."

It has now been held over and over again in this Court that if that view is expressed by the Secretary of State this Court cannot go behind it and that is a perfectly proper ground for refusing to extend the time. However the Act of 1971 provides a fairly comprehensive appeals machinery, and the applicant, being dissatisfied with the decision of the Secretary of State in the terms to which I have referred, duly appealed to an adjudicator under the Act. The adjudicator gave a very detailed written judgment. No one could possibly contend that he had failed to go in detail into every aspect of this problem, and he recites the evidence given by or on behalf of the applicant as to his desire to continue with his course at the technical college and all the questions on the merits of that kind. But eventually the adjudicator comes to this conclusion, having said that the applicant is an intelligent young man. He goes on to say: "In my opinion the appellant is very astute and by no means the sort of person to become confused about such matters as the last date for application for admission to a course or the precise requirements of the immigration rules. I have no doubt that he will, if allowed to remain, complete his course successfully but I also think that his lapses have been deliberate and designed to prolong his stay with a view to remaining permanently in the United Kingdom. In my opinion the respondent's decision was in accordance with the law and the immigration rules and his discretion should not have been exercised differently and I therefore dismiss this appeal." That is a very clear decision on the merits supporting the decision of the Secretary of State, and again taking the view that one could not have any confidence in this young man going home when he completed his course. The applicant then desires to take the matter before the Immigration Appeal Tribunal, a course which he is able to take under the Act of 1971 and the provisions setting up the Appeal Tribunal being contained in s 20 of that Act. The section, which provides for a further appeal to the Tribunal, opens with these words in sub-s (1):

"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."

I draw attention to the opening words because it seems to me perfectly clear that Parliament contemplated not only that there were to be rules of procedure governing the appeal to the Immigration Appeal Tribunal but specifically contemplated that one of the things that the rules of procedure might deal with was the need for leave to appeal. Accordingly, when Mr Nathan comes to argue, as he presently does, that the rules of procedure made under the Act are ultra vires it seems to me that he cannot contend, as he is bound to do to support his case, that as a general principle it would be ultra vires for rules of procedure to require leave to appeal. In s 22(5) there are two specific instances in which the Act provides that despite rules of procedure no leave shall be required for an appeal, but they are not this applicant's case. They are quite different and those provisions do not affect him. The provision which he refers us to is contained in the Immigration Appeals (Procedure) Rules 1972 in r 14(2), and that provides: "In addition to the circumstances in which leave to appeal must be granted by virtue of s 22(5) of the Act (existence of certificates of patriality or entry clearance), an appellate authority to whom application for leave to appeal as aforesaid is duly made shall grant it -- (a) if the authority is satisfied that the determination of the appeal turns upon an arguable point of law." The matter has been put before us as though the effect of that rule was to provide that there should be no appeal to the Appeal Tribunal except on a point of law. If that was the effect of the Procedure Rules I would see certainly an argument for saying that they were ultra vires and went too far, but that is not the effect of them at all. Their general effect is to require leave to appeal generally, n1 but there are three instances, of which the presence of an arguable point of law is one, where leave must be given. I can see nothing in excess of the powers contemplated by the Act, and it seems to me that the substantial point relied upon in this application is without foundation. n1 Rule 14(1) is in the following terms: "(1) -- An appeal shall lie only with the leave of the adjudicator or of the Tribunal where it is from a determination by an adjudicator -- (a) on an appeal under any provision of the Act other than section 14 (appeals against conditions); (b) on an appeal under section 14 which was dismissed on the determination of such a preliminary issue as is referred to in Rule 11, or (c) on an appeal under section 14(1), by a person who has a limited leave under the Act to enter or remain in the United Kingdom, against a refusal to vary that leave." The applicant has sought to make two further points. He has sought to argue that the Tribunal looked at the material before it and did not look at additional or fresh evidence. But in the first instance all that the Tribunal has to do is to assess the issues which are raised and, having assessed the issues in this case, it was perfectly proper for the Tribunal as a matter of discretion to take the view that it would not grant leave to appeal. Those really are the only matters which I find it necessary to deal with and the short conclusion which I have reached is that this application should be refused.

Judgment Two:

THOMPSON J: I agree.

Judgment Three:

KENNETH JONES J: I agree.

DISPOSITION:

Application refused.

SOLICITORS:

Suriya & Co (for the applicant); Treasury Solicitor.

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