R v. Immigration Appeal Tribunal, Ex parte Armstrong

R v IMMIGRATION APPEAL TRIBUNAL Ex parte ARMSTRONG, No 120/76 TH/7174/74(566)

Queen's Bench Division

[1977] Imm AR 80

Hearing Date: 14 February 1977

14 February 1977

Index Terms:

Notice of appeal -- Time limit for appealing -- Immigration Appeal Tribunal -- Whether jurisdiction in Tribunal to extend time for leave to appeal from adjudicator's determination -- Immigration Appeals (Procedure) Rules 1972, rr 11(4), 15(1) & (2), 38.

Held:

The Immigration Appeal Tribunal had no jurisdiction to extend the time permitted under r 15 in Part III of the Immigration Appeals (Procedure) Rules 1972 for making application to the Tribunal for leave to appeal, or for giving notice of appeal, from the determination of an adjudicator. The approach adopted by the Court of Appeal in the case of R. P. Mehta, which concerned an appeal at first instance to an adjudicator (under r 11(4) in Part II of the Procedure Rules), was not permissible on appeals to the Tribunal from adjudicators, for such appeals were dealt with in Part III of the Procedure Rules, and -- in marked contrast to the clear and explicit power to extend time given in r 11(4) -- there was nothing in r 15 to say that the time limits could be extended and no comparable provision could be inferred anywhere else in Part III. Furthermore, the very wide words in the provisions of r 38 (in Part IV of the Procedure Rules) for the curing of irregularities "resulting from failure to comply with the Rules", were not to be construed as containing a power enabling -- still less, requiring -- the Tribunal to confer upon itself a jurisdiction which it did not otherwise possess (see p 84, post). Per curiam: If the words of r 38 were intended to be so wide (as counsel for the appellant contended) one asks onself why have the specific provisions of r 11 at all -- why, if all that one really needed was r 38 to solve all problems? The Court so held on the facts and Immigration Procedure Rules which are set out in the judgment of the Lord Chief Justice which is reported below.

Counsel:

K. S. Nathan for the applicant. Harry Woolf for the respondent. PANEL: Lord Widgery CJ, Michael Davies and Robert Goff JJ

Judgment One:

LORD WIDGERY CJ: In these proceedings Mr Nathan moves on behalf of one Kelvin Barry Armstrong for an Order of Certiorari to remove into this Court with a view to its being quashed the determination of the Immigration Appeal Tribunal dated 9 January 1976. The effect of that determination was to decline to hear an appeal sought to be brought by the present applicant on the basis that it was out of time. Relief is also sought in the form of an Order of Mandamus which is to follow the Order of Certiorari if the latter is granted to require the Tribunal to consider the matter afresh. The history of the case is quite brief and it is a case where an interesting point of law arises, although for reasons which will appear in a moment it has not been possible in these proceedings to give that interesting point of law an airing. n1 n1 The point of law was whether the father of a child born out of wedlock could be considered as a parent of that child within the context of s 2(1)(d) of the Immigration Act 1971, so that the child could (if other conditions relating to his father were fulfilled) claim the 'right of abode'. The applicant is a citizen of Singapore. He is 30 years of age. He was born illegitimate. His father was one Scarife and his mother was a Singapore girl. On 9 October 1949 the applicant was adopted by a Mr Armstrong and took the name of Armstrong under which name he moves today. All this happened in Singapore. He came to the United Kingdom on 14 April 1972 as a visitor with a passport for 6 months. To his credit, and unlike so many people who come in with similar passes, he took action when he saw his 6 months was running out and applied to the Home Office for a further extension of time to stay in this country, giving as his reason that he wanted to find his natural father. The Home Office refused that application in December 1973 and the applicant thereupon appealed to an adjudicator under the Immigration Act 1971 to determine the issue of whether he should be granted an extension of time or not. The adjudicator heard the case out and determined on 11 June 1975 that the appeal should be dismissed. The applicant was not content to abide by that conclusion. He received notice of it in a letter dated 30 June in which he is told, amongst other things, that he can appeal against the adjudicator's decision as long as he does so not later than 14 July. n2 There is then some delay which I do not fully understand, although it is due in part to the absence of people on holiday in the high summer, and it is not until 11 August that any real action is taken in regard to this matter. n2 The record on the applicant's file shows that the adjudicator reserved his determination at the conclusion of the hearing; that he signed his determination on 17 June 1975, and that copies of that determination were posted to the appellant and his representative on 30 June. The action takes the form of a letter of that date written to the adjudicator by one Francis Salandy, who is described as an immigration counsellor and who apparently appeared on behalf of the applicant at the hearing before the adjudicator. This letter, which is written in a very friendly vein as though they knew each other very well, says that he, Salandy, wants to have contact with the adjudicator to talk about a possible appeal, and the last paragraph of the letter says: "In this circumstance, I wonder whether you would accept this application even though it is outside the 14 days given. I would be in our Bristol office for the next two weeks and I would speak to you on the telephone when you are back from your holidays." Following up that request for leave to appeal dated 11 August, we have the grant of leave to appeal by the adjudicator on 4 September 1975, and the adjudicator grants that leave on the footing that there is an interesting point of law in this case. n3 Leave having been granted on 4 September, the hearing before the Tribunal was organised for 9 January 1976, but when the matter came before the Tribunal they took the view that the appeal could not go further because it was out of time. It is at this point and for that reason that one has to look a little carefully at the provisions of the 1971 Act and the Rules with regard to time limits, the appropriate Rules being the Immigration Appeals (Procedure) Rules 1972 (SI 1972 No 1684). n3 See footnote 1, ante. These Rules are set out in such a way that Part II deals with an appeal at the first stage to an adjudicator or, where it happens, to a Tribunal at first instance, and Part III refers to an appeal to the Tribunal from the adjudicator, the second stage of the appeal machinery which is that upon which the present proceedings foundered before the Tribunal. The time limits are laid down for each of these stages, but a very special provision is contained in r 11 at the first stage, that is to say, at the appeal to the adjudicator stage, because r 11 contemplates that there can be a trial as a separate and preliminary issue of the question whether in a particular instance a notice required by the Rules has been given within time or not. Under para (4) of r 11 of the 1972 Procedure Rules there is this very wide provision for giving relief in the event of a failure to act within time. It provides:

"Where the respondent to an appeal makes such an allegation as is mentioned in rule 8(3)(b) and the appellate authority determines, as a preliminary issue, that the notice of appeal was not given within the period permitted by rule 4, then, except where a deportation order is for the time being in force in respect of the appellant, the appellate authority shall not be required to dismiss the appeal but may allow it to proceed if the authority is of the opinion that, by reason of special circumstances, it is just and right so to do."

I draw particular attention to that because it is a very important provision obviously giving wide powers for the adjudicator to proceed with his adjudication notwithstanding the fact that there has been some breach of the time limit provisions. But I do stress the fact that it is, from its position in Part II, clearly applicable only to an appeal to the adjudicator, and even then it requires that there should be 'special circumstances' making it 'just and right so to do'. I stress that point because there may have been some confusion in the past about a very important case in the Court of Appeal R v The Secretary of State for the Home Department, ex parte Mehta. n4 In that case the Master of the Rolls in particular stressed the fact that the time limits were not to be strictly enforced but must be approached in a flexible fashion, and drew particular strength in that argument from the terms of r 11(4) to which I have referred. But what has I think been perhaps overlooked, and indeed I confess that I have overlooked it myself on occasions, is that R. P. Mehta's case was a case of an appeal to the adjudicator and therefore the rules relevant to the time in which steps can be taken were those contained in Part II and not in Part III. n4 Case of Miss Rashila Prataprai Mehta, [1976] Imm A R 38; [1975] 1 WLR 1087; [1975] 2 All ER 1084. Thus one turns to Part III to see what that has to say about an appeal to the Tribunal from the adjudicator, which is the point at which lapse of time is suggested here to be fatal to the applicant. Rule 15 provides for the second stage appeal, and under para (1):

"Application to an adjudicator for leave to appeal shall be made forthwith after the determination in question."

Sub-rule (2) of r 15 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." There is nothing explicit there, not a word anywhere, to say that those time limits can be extended by the Tribunal or by the Secretary of State, or by anybody else. If one contrasts the provisions in Part III with those in Part II the difference is very marked. Going back to the facts again for a moment, under r 15 the applicant had to show either that he had applied to the adjudicator for leave to appeal forthwith after the adjudicator's determination, or that he had given a notice to the Tribunal within 14 days after the adjudicator's determination. Mr Nathan argues, with the courage which we expect of him, that an application for leave to appeal dated 11 August, which was the date of the letter from Mr Salandy, was forthwith after the conclusion of the proceedings before the adjudicator on 11 June. We find it quite impossible, giving the word "forthwith" a wide meaning for this purpose, to say that notice of appeal given on 11 August was given forthwith upon the conclusions of proceedings on 11 June. n5 n5 Neither, semble, that 11 August was "forthwith" after the sending of the determination to the appellant and his representative on 30 June. The alternative would be to say that the notice of appeal to the Tribunal was given within 14 days of the determination of the adjudicator, and all one can say is it just was not. Nothing happened or could conceivably be described as the giving of notice until at any rate 11 August, and that was demonstrably much later than 11 June, n6 and accordingly the terms of r 15(2) were not complied with. n6 And also much over 14 days later than 30 June (see footnote 2, ante.) It is urged upon us following the approach of the Court of Appeal in R. P. Mehta's case n7 that we should nevertheless give time and excuse the delay on the grounds that it was not the fault of the applicant or for some other good ground, but, speaking for myself, I can see no authority for our introducing provisions to extend time limits which have not been put in the Rules themselves. The fact that the power to extend in r 11(4) is so clear and explicit is another argument in my opinion for saying that there is no comparable provision to be inferred in Part III. One asks oneself why should it be inferred in Part III. Why was it not there expressly if it was intended so to operate? n7 [1976] Imm A R 38; [1975] 1 WLR 1087; [1975] 2 All ER 1084. Notwithstanding the observations of the Court of Appeal in R. P. Mehta which clearly activate this Court when dealing with a case falling under r 11(4), with a case falling under r 15 I do not find it possible to say that a similar approach is permissible at all and it seems therefore on the face of it that the applicant's application is hopeless. There is, however, one matter which has been referred to and which, in deference to Mr Nathan's arguments, I should like to mention. That is a reference to r 38, which os in Part IV of the Rules, and lest there is any doubt about it, it is apparent that Part IV relates to proceedings to which Part III applies, which in turn is an appeal to the Tribunal from an adjudicator. I get that from reading r 22(1)(b). Rule 38 provides:

"Any irregularity resulting from failure to comply with these Rules before an appellate authority has reached its decision shall not by itself render the proceedings void, but the appellate authority may, and shall if it considers that any person may have been prejudiced, take such steps as it thinks fit before reaching its decision to cure the irregularity, whether by amendment of any document, the giving of any notice or otherwise."

Those are very wide words, no doubt, and Mr Nathan asks us to say that within those wide and, I find, not very clear words there is not only a power but a duty on the Tribunal to cure the irregularity of a late notice by saying it should be ignored and by that means bring the proceedings back to proceedings which are within the jurisdiction of the Tribunal. I do not find it possible to give the words that meaning. If they were intended to be so wide, one asks oneself why have r 11 at all. n8 Why have these other specific provisions if all that one really needed was r 38 to solve all problems? I do not believe that in proceedings where the Tribunal has no jurisdiction that jurisdiction can be conferred upon it by taking advantage of any of the powers which r 38 is ultimately proved to contain. I do not think it contains a power which requires the Tribunal to give itself jurisdiction which it does not otherwise possess, and accordingly I am unable to support Mr Nathan's argument on that point. I have come to the conclusion that this application should be refused. n8 Part IV relates also to proceedings to which Part II applies (see r 22(1)(a)).

Judgment Two:

MICHAEL DAVIES J: I entirely agree.

Judgment Three:

ROBERT GOFF J: I also agree.

DISPOSITION:

Application refused.

SOLICITORS:

Michael Freeman & Co; Treasury Solicitor.