R v. Immigration Appeal Tribunal, Ex parte Nazarali Kassam Lila and Another

R v IMMIGRATION APPEAL TRIBUNAL Ex parte NAZARALI KASSAM LILA AND ANOTHER, TH/12104/77

Queen's Bench Division

[1978] Imm AR 50

Hearing Date: 21 October 1977

21 October 1977

Index Terms:

Appeal -- Leave to appeal to the Tribunal -- Interlocutory decision -- Ruling by adjudicator excluding documentary evidence -- Decision of adjudicator not amounting to a 'determination' -- Appeal still before adjudicator -- No provision in immigration law for appeals to the Tribunal on interlocutory decisions -- Immigration Act 1971, s 20(1) -- Immigration Appeals (Procedure) Rules 1972, r 11.

Jurisdiction -- Leave to appeal to Tribunal -- Interlocutory decision by adjudicator in a ruling on admissibility of evidence -- Whether ruling can be appealed to the Tribunal before appeal proceeds to adjudicator's 'determination thereon' -- Immigration Act 1971, s 19(1)(3), s 20(1) -- Immigration Appeals (Procedure) Rules 1972, r 11.

Deportation -- Evidence on appeal to adjudicator -- Admission of documentary evidence on matter relating to unsuccessful earlier application for variation of conditions -- Factors to be considered when deciding on admissibility -- Immigration Act 1971, s 14, s 15(1), s 19.

Evidence -- Admissibility -- Appeal against decision to make a deportation order -- Admissibility of evidence relevant to the alleged merits and the circumstances falling to be considered in the appeal -- Attempt to rely on matter not previously relied on when opportunity was given to appeal against refusal of a variation of conditions -- Quaere whether that matter may be relied on when appealing against deportation decision -- Immigration Act 1971, s 15(1).

Held:

In an appeal to an adjudicator under s 15(1) n1 of the Immigration Act 1971 ("the Act") by a husband and wife, citizens of Tanzania, against the decision of the Secretary of State that they should be deported under s 3(5)(a) n2 of the Act, the appellants sought to introduce extensive documentary evidence relating to the first appellant's business transactions (the subject of an earlier application to the Secretary of State under s 14(1) n3 of the Act). The adjudicator ruled against the admissibility of this evidence. The ruling was a written one made during an adjournment of the hearing of the appeal, and the appellants applied to the Immigration Appeal Tribunal for leave to appeal the adjudicator's ruling. The Tribunal declined to entertain the application, holding that the Tribunal had no jurisdiction to review a decision by an adjudicator which did not amount to a 'determination' within s 20(1) n4 of the Act. n1 See footnote 13, post. n2 See footnote 12, post. n3 See footnote 8, post. n4 Section 20(1) is set out on p 54, post. The appellants then moved in the Queen's Bench Divisional Court for Orders of Certiorari and Mandamus to quash the Tribunal's decision and to require the Tribunal to entertain the appellants' application. Held: The Tribunal's decision was right, because the phrase "his determination thereon" appearing in the section of the Act (s 20(1)) n4 which made provision for appeal from an adjudicator to the Tribunal clearly referred to the determination or decision of the adjudicator on the appeal, either allowing or dismissing it under s 19, n5 and not to an incidental or interlocutory decision arising in the course of the appeal. n4 Section 20(1) is set out on p 54, post. n5 Section 19(1) is set out on p 54, post. Per curiam: If the adjudicator by a ruling in the course of an appeal rejects evidence tendered by the appellants which he ought to have taken into account and dismisses the appeal, that is of course one of the matters which can be reviewed in an appeal to the Tribunal under s 20. Quaere whether the ruling of the adjudicator was the right one on the facts in the appeal before him. But as appellants under s 15(1) of the Act the applicants were entitled to have the general merits of their case and all relevant circumstances considered. n6 Accordingly the documents tendered would be admissible, unless on inspection they turned out to be irrelevant to the alleged merits and to all the circumstances to be considered in the appeal; the appeal should therefore go back to the adjudicator for him to continue the hearing. n6 See footnotes 13 and 16, post.

Counsel:

C. Fletcher-Cooke QC and K. S. Nathan for the applicants. Harry Woolf for the respondent. PANEL: Lord Widgery CJ, Cantley and Peter Pain JJ.

Judgment One:

CANTLEY J (giving the first judgment at the invitation of Lord Widgery CJ): In these proceedings Mr Fletcher-Cooke moves for an Order of Certiorari to quash a decision of the Vice-President of the Appeal Tribunal dated 16 June 1977, for an Order of Mandamus directed to the Vice-President to entertain an application for leave to appeal from the ruling of an adjudicator dated 10 May 1977 excluding documentary evidence containing approximately 212 folios relating to the first named applicant's business transactions from 1972 to 1977, and alternatively for an Order of Mandamus directed to the Vice-President under r 37(b) of the Immigration Appeals (Procedure) Rules 1972 to order the adjudicator to receive the evidence presented to him n7. n7 Rule 37(b) under the heading 'Miscellaneous Powers' provides that "An appellant authority may --... (b) give directions on any matter arising in connection with an appeal to any party who requests them". The applicants, citizens of Tanzania, were admitted to this country on December 21 1971 for a period of two months as visitors subject to a condition prohibiting them from engaging in any employment, business, profession or occupation for reward. They remained in this country without leave after the expiration of the two months and have been here ever since. On 24 March 1972 the first named applicant made an application to remain here as a businessman. This application was refused and an appeal against that decision was dismissed on 30 September 1974. Those proceedings involving s 14 n8 of the Immigration Act 1971, took place before the decisions of the Court of Appeal and the House of Lords in R v Immigration Appeal Tribunal ex p Subramaniam n9 and Suthendran v Immigration Appeal Tribunal n10. These cases decided that it is too late to apply for a variation of a "limited leave" after the leave has expired and that such a case does not come within the provisions of s 14 of the Act. n8 Section 14(1) of the Act provides for appeals to an adjudicator against (inter alia) refusals of applications for a variation of limited leave to remain in the United Kingdom (whether as regards duration or conditions). n9 [1976] Imm A R 155; [1977] 1 QB 190; [1976] 3 All ER 604. n10 [1976] Imm A R 44; [1977] AC 359; [1976] 3 All ER 611. These proceedings in 1974 were therefore without jurisdiction and were a nullity. On 28 January 1975, the applicants applied to remain in this country as dependants of their son. This application was refused and, the case of Suthendran having by then (in October 1976) been decided, an adjudicator ruled in November 1976 that he had no jurisdiction to entertain an appeal under s 14(1) in respect of that application. In the meantime, the applicants had made yet a further and quite inconsistent application, this time to remain here as persons of independent means, n11 and this application had been refused on 9 July 1976. n11 Under para 29 of HC 80. On 10 December 1976 the Secretary of State decided to make orders under s 3(5)(a) of the Immigration Act 1971 n12 requiring each of the applicants to leave the United Kingdom, they having remained here without permission. The applicants had a right of appeal to an adjudicator under s 15(1) against this decision and they appealed accordingly n13. The proceedings in that appeal are the subject of the motions now before this Court. n12 Section 3(5)(a) provides: "A person who is not patrial shall be liable to deportation from the United Kindom -- (a) if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave." n13 Section 15(1), so far as material, provides: "Subject to the provisions of this part of this Act, a person may appeal to an adjudicator against -- (a) a decision of the Secretary of State to make a deportation order against him by virtue of section 3(5) above." The proceedings before the adjudicator on 5 May 1977 took a somewhat unusual course in that having heard lengthy submissions, including submissions as to the admissibility of the 212 folios of documents already referred to and which the applicants sought to put in evidence, he reserved his ruling which was subsequently delivered in writing in a careful and detailed document headed "Ruling" and dated 10 May 1977. After referring to the history of the case and to the recent authority of Subramaniam n14 and Suthendran n15 to which I have already referred, the ruling continued as follows: n14 [1976] Imm A R 155; [1977] QB 190; [1976] 3 All ER 604. n15 [1976] Imm A R 44; [1977] AC 359; [1976] 3 All ER 611. "If I was to accept Mr Nathan's submission that a person appealing under s 15(1) of the Act was entitled to raise any matter which had not or could not have been determined previously by the Immigration Appeal authorities as part of the circumstances relevant to a decision to make a deportation order, I would be placing persons who had persistently failed to make timeous applications in a position far more favourable than those who had, until their final period of unlawful residence, acted fully within the law, making applications within due time. I must also uphold the contention (of the Home Office representive) that my functions as an adjudicator are limited by s 19 of the Act of 1971 to reviewing decisions made by the various immigration authorities, and I would indeed be exceeding my jurisdiction if I were to entertain what would be in effect new applications for a variation of leave which had not been considered in the first instance by the respondent. The Act affords a person refused a variation of an existing leave a full opportunity to appeal against that decision and if such person fails to exercise that right, or is for good cause not entitled to file an appeal, I do not consider that it would be unjust or unreasonable to refuse him 'a second bite' in the course of the deportation proceedings. There may be the occasional and very exceptional case in which an adjudicator hearing an appeal against a decision to deport considers that it would be appropriate to refer a potential claim for a variation of leave to the Home Office for consideration. This has not altered my opinion that the term 'all relevant circumstances' contained in para 42 of HC 80 n16 should be interpreted so as to exclude matters which have or could have been the subject of a prior application for a variation of leave, and I so rule." n16 Paragraph 42, so far as material, provides: "Deportation will normally be the proper course where the person has persistently contravened or failed to comply with a condiction or has remained without authorisation... But full account is to be taken of all the relevant circumstances before a decision is reached." The applicants have applied to the Immigration Appeal Tribunal for leave to appeal against this ruling. The Vice-President of the Tribunal has declined to entertain their application on the grounds that the Tribunal has no jurisdictions to review a decision by an adjudicator which does not amount to a 'determination' within s 20(1) of the Immigration Act 1971. The only matter falling directly for decision by this Court is whether that decision of the Vice-President is right. I am of opinion that the decision of the Vice-President of the Appeal Tribunal was clearly right. This was an interlocutory appeal against a ruling made by the adjudicator in the course of an appeal which is still before him and in my view the Immigration Act 1971 makes no provision for such an appeal. Section 19(1) of the Immigration Act 1971 provides as follows:

"Subject to sections 13(4) and 16(4) above, and to any restriction on the grounds of appeal, an adjudicator on an appeal to him under this Part of this Act -- (a) shall allow the appeal if he considers -- (i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently; and (b) in any other case, shall dismiss the appeal."

Section 19(3) provides that where an appeal is allowed the adjudicator should give such directions for giving effect to the determination as the adjudicator thinks requisite. Section 20(1) provides as follows:

"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 20(2) provides that

"Directions given by an adjudicator under section 19(3) above need not be complied with so long as an appeal can be brought against his determination and, if such an appeal is duly brought, so long as the appeal is pending..."

The question before this Court turns on the meaning to be given to the phrase 'his determination thereon' in s 20(1). Mr Fletcher-Cooke says that there is no magic in the word 'determination' which, as a word, is synonymous with the word 'decision', and that the ruling of the adjudicator in this case was a determination or decision against which there is a right of appeal under s 20. However, the question is not what is its abstract meaning, but what is the appropriate meaning of the word 'determination' in the context in which it is used in this statute. In my view the phrase 'his determination thereon' in s 20(1) clearly refers to the determination or decision of the adjudicator on the appeal, either allowing or dismissing it under s 19, and not to an incidental or interlocutory decision arising in the course of an appeal. The words of s 20(1) are 'his determination thereon', not 'a determination therein'. If the adjudicator by a ruling in the course of an appeal to him rejects evidence tendered by the appellant which he ought to have taken into account and dismisses the appeal, that is of course one of the matters which can be reviewed in an appeal to the Appeal Tribunal under s 20. Rule 11 of the Appeals (Procedure) Rules 1972 made under s 22 of the Act of 1971, which provides for the determination of certain specific preliminary issues which could dispose of the appeal, n17 is not inconsistent with this interpretation of s 20(1). n17 i.e. Where the respondent to an appeal (to an adjudicator or the Tribunal at first instance) has alleged that the appellant is not entitled to appeal (for reasons specified) or that the notice of appeal was not given within the period permitted. In my view the proper course is for the case to go back to the adjudicator to continue the hearing and, after taking into account all relevant matters, allow or dismiss the appeal. Whether the ruling of the adjudicator was the right one does not strictly fall for decision by this Court at this stage, but in the hope that it may be of assistance, I will state my own views upon it. I am of opinion that in their appeal under s 15(1), these applicants are entitled to have the general merits of their case, such as they may be, and all the relevant cirlcumstances considered. I do not think it is correct to regard them as hving a "second bite", to use the adjudicator's phrase because, their former appeal being a nullity, they have not yet had a first bite. I recognise of course that there is a great deal to be said against them but I do not know what is to be said on the other side. I have not seen any of the 212 folios of documents, but unless on inspection they turn out either to be irrelevant to the alleged merits and to all the circumstances to be considered in the appeal, or to be in such a form as to amount to an abuse of proper procedure, they would in my view be admissible. Arising out of what is stated in the adjudicator's ruling Mr Woolf has submitted that in an appeal under s 15(1) n18 an appellant is precluded from relying on a matter which has already been decided against him in an appeal by him under s 14 of the Act n19 and that he would also be precluded from relying on a matter which he could have relied upon in that appeal but which he did not then choose to put forward. I see considerable force in that submission but as it does not fall for decision in this case, I say no more about it. n18 See footnote 13, ante. n19 See footnote 8, ante.

Judgment Two:

LORD WIDGERY CJ: I agree.

Judgment Three:

PETER PAIN J: I agree.

Judgment Four:

LORD WIDGERY CJ: Also the Order of Certiorari will go accordingly.

SOLICITORS:

Nazerali Suchak & Co; Treasury Solicitor.

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