R v. Immigration Appeal Tribunal, Ex parte Alghali

R v Immigration Appeal Tribunal Ex parte Alghali

Queen's Bench Division

[1984] Imm AR 106

Hearing Date: 11 July 1984

11 July 1984

Index Terms:

Practise and procedure -- Deportation -- Bail -- Whether Secretary of State's consent to grant of bail required when following dismissal of appeal leave to appeal to Immigration Appeal Tribunal had been given or notice of appeal lodged -- Immigration Act 1971 Sch 2 Part II paras 28(1)(2)(5), 29(1), 30(1).

Held:

The applicant applied for an order of certiorari to quash an order of the Immigration Appeal Tribunal dismissing his appeal against the decision of the Secretary of State for the Home Department to deport him. The facts are set out in the judgment of the court. Held: (i) While an appeal was pending directions for removal were of no effect. (ii) The Secretary of State's consent to bail was not required under paragraph 30(1) of Schedule 2 to the Immigration Act 1971 whilst an appeal was pending.

Counsel:

A Riza for the applicant. Simon Brown for the respondent. PANEL: Woolf J

Judgment One:

WOOLF J: This is an adjourned application for judicial review which was last before me on 16 December 1983. On that occasion, Mr Riza, who appeared on behalf of the applicant, raised an interesting point of law for the consideration of the court. When the point was explained in the course of argument (with, if I may say so, considerable skill and clarity by Mr Riza) Mr Brown appreciated that the point may be of substance and sought time to consider the point, the force of which, up to that time, had not been made clear. The matter now comes back before me today and, in the interim, Mr Riza's advocacy has triumphed. The Home Office accept that his interpretation is indeed the correct interpretation and, accordingly, do not oppose the court adopting that interpretation. However, I am told by Mr Riza that it is still the practice of some adjudicators, at any rate, to follow the previous approach which I will explain in a moment. Because of this, it is desirable that I should give a short judgment in order to clarify interpretation in law of the statutory provisions in question which are not completely straightforward. They are contained in Schedule 2 Part II of the Immigration Act 1971 which deals with "Effect of Appeals". The point that arises is as to whether or not, where there has been an appeal and the adjudicator has dismissed that appeal but has either given leave to appeal or the appellant has given notice of appeal against the determination of the adjudicator, the adjudicator's power to grant bail is restricted by the absence of the Secretary of State's consent to the granting of bail. The relevant provisions so far as the granting of bail are concerned, are contained in paragraph 29 of the Schedule. Sub-paragraph (1) provides: "Where a person (in the following provisions of this Schedule referred to as "an appellant") has an appeal pending under section 13(1), 16 or 17 of this Act and is for the time being detained under Part I of this Schedule, he may be released on bail in accordance with this paragraph." That power to grant bail is, however, subject to the restriction contained in paragraph 30(1) of the Schedule. That provides: "An appellant shall not be released under paragraph 29 above without the consent of the Secretary of State if directions for the removal of the appellant from the United Kingdom are for the time being in force, or the power to give such directions is for the time being exercisable." At first sight, paragraph 30(1) would appear to be in direct conflict with the submissions of Mr Riza which were to the effect that the absence of consent of the Secretary of State was not a bar to the grant of bail. However the paragraph has, in turn, to be read in the context of earlier provisions of the Schedule, namely, those contained in sub-paragraphs (1), (2) and (5) of paragraph 28 of the Schedule. Paragraph 28(1) provides: "Where a person in the United Kingdom appeals under section 13(1) of this Act on being refused leave to enter, any directions previously given by virtue of the refusal for his removal from the United Kingdom shall cease to have effect, except in so far as they have already been carried out, and no directions shall be given so long as the appeal is pending." Sub-paragraph (2) provides: "Where a person in the United Kingdom appeals under section 16 or 17 of this Act against any directions given under Part I of this Schedule for his removal from the United Kingdom, those directions, except in so far as they have already been carried out, shall be of no effect so long as the appeal is pending." Sub-paragraph (5) provides: "For purposes of sub-paragraphs (1) to (3) above (but not for purposes of sub-paragraph (4)), where an appeal to an adjudicator is dismissed, an appeal shall not be regarded as pending unless forthwith after the dismissal (a) the appellant duly gives notice of appeal against the determination of the adjudicator; or (b) in a case in which leave to appeal against that determination is required and the adjudicator has power to grant leave, the appellant duly applies for and obtains the leave of the adjudicator." So the effect of sub-paragraph (5) is to continue the pending appeal process as long as the requirements of that sub-paragaraph are fulfilled. In fact, in this particular case with which I am concerned, the situation was one where the adjudicator had power to grant leave, there had been an application for leave had been granted. The consequence was that the appeal was still pending. In this case Mr Riza argues (and would argue in other cases) that the effect of the earlier sub-paragraphs of paragraph 28, when applicable, is that the directions are of no effect. That being so, the result is that the restrictions on the grant of bail contained in paragraph 30 do not apply. That presupposes that there are directions which are in force. If directions are of no effect, so argues Mr Riza, they are not to be regarded as being in force. The Home Office now accept that that approach to the interpretation of the Schedule is the right one. I endorse the view of the Home Office. The interpretation which Mr Riza has adopted does clearly fit in with the intent of those paragraphs of the Schedule. It follows in this case that that is the interpretation which should have been applied and the adjudicator was wrong not to apply that interpretation. What is more, in the future, adjudicators must follow the interpretation which I have just indicated is the proper one in exercising their power to grant bail. I anticipate, as a result of the judgment I have just given, there should be no problems in the future with regard to the interpretation of those paragraphs.

DISPOSITION:

Application granted

SOLICITORS:

BM Birnlberg & Co; Treasury Solicitor

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