R v. An Adjudicator, Mr RG Care, Ex parte Secretary of State for the Home Department

R v An Adjudicator, Mr RG Care ex parte Secretary of State for the Home Department CO/845/88

Queen's Bench Division

[1989] Imm AR 423

Hearing Date: 22 March 1989

22 March 1989

Index Terms:

Immigration appellate authorities -- powers -- whether there is a power to issue an order for discovery -- whether the appellate authorities have any powers to control the procedures relating to appeals before them beyond those powers statutorily vested in them -- whether they may exercise other powers in the interests of fairness. Immigration Act 1971 ss 12-17, 19, 22: Immigration Appeals (Procedure) Rules 1984, rr 10, 18, 25, 27(1), 28, 29(2), 34, 37(b): Industrial Tribunals (Rules of Procedure) Regulations 1985 (SI 1985: 16), sch 1 r 4.

Immigration Appeals (Procedure) Rules -- the ambit of the rules -- the meaning of 'particulars' in r 25. Immigration Appeals (Procedure) Rules 1984 (SI 1984: 2041).

Judicial review -- whether an application for judicial review was the proper procedure for challenging the validity of an adjudicator's order for discovery -- whether there should have been an appeal to the Immigration Appeal Tribunal. Immigration Act 1971 s 20.

Held:

Mr Jaswant Singh Bharj applied for political asylum in March 1983. His application was refused on 26 March 1986. He appealed to an adjudicator. There had been an interview with Mr Bharj in July 1983. When the case went before the adjudicator application was made for an order for discovery, requiring the Home Office to produce inter alia the record of the July 1983 interview, which they had earlier declined to produce without a court order. The adjudicator made an order for discovery. The Secretary of State sought judicial review, maintaining that an adjudicator had no power to order discovery. Held: 1. The powers of the appellate authorities to control the procedure relating to appeals before them were limited to those powers vested in them by statute or subordinate legislation. They had no powers analogous to the inherent powers of the High Court to control its procedure nor could they exercise other powers in the interest of fairness. 2. Under the Procedure Rules an appellate authority could summon a witness, but was given no power to order the discovery of documents. 3. In r 25 of the Procedure Rules, the term 'particulars' on which counsel before the Court relied to found a power of discovery, had its ordinary meaning in English procedural law, which did not extend to documents. 4. Although at one time counsel had been disposed to argue that an appeal against the decision ought to have been lodged with the Tribunal, the Court was satisfied that the proper procedure had been to apply for judicial review.

Cases referred to in the Judgment:

In re Musisi [1987] AC 514: [1987] Imm AR 250. Secretary of State for the Home Department v Thirukumar and ors [1989] Imm AR 402. West Midland Passenger Executive v Jaquant Singh [1988] 1 WLR 730: [1988] 2 All ER 873.

Counsel:

J Laws for the Secretary of State for the Home Department; D Pannick for the adjudicator; KS Nathan QC and V Kothari for Jaswant Singh Bharj. PANEL: Roch J

Judgment One:

ROCH J: On 12 December 1982, Jaswant Singh Bharj arrived in the United Kingdom. He had an entry clearance to do so as a visitor. In fact he had left his home in India in June 1982 and had visited various countries before coming to the United Kingdom from Denmark. Mr Bharj claims that he was forced to flee from India because of his political activities. He was, and is, a member of the Dal Khalsa, a political party, or movement, whose objective is the secession of the Sikh state of Khalistan from the republic of India. Mr Bharj applied for political asylum on 4 March 1983. That application led to a lengthy interview at the Home Office on 21 July 1983. A written record of that interview was kept by the Home Office. On 26 March 1986 the Home Office refused his application. Mr Bharj appealed against that decision to an adjudicator under section 14(1) of the Immigration Act 1971. On 12 January 1987 the Home Office produced an explanatory statement which contained a summary of the interview which had taken place on 21 July 1983. The appeal came on for hearing before Mr Coley on 14 October 1987. There was a witness from the United States of America present to give evidence in support of Mr Bharj's appeal. The appeal was not heard, however, because the decision of the House of Lords in the case of In re Musisi [1987] AC 514 was then imminent. Prior to that hearing, the solicitors acting for Mr Bharj had written to the Home Office seeking disclosure of the record of the interview of 21 July 1983. Their first letter was dated 22 July 1987. That letter was acknowledged. A second letter was sent on 2 September 1987, repeating the request for the record of interview. There was no reply from the Home Office. On 16 September 1987 a third request was made, and this time it was coupled with a request for the correspondence between the Home Office, the Foreign Office and the Commonwealth Office relating to Mr Bharj's case. The Home Office replied to that letter on 23 September 1987 to the effect that they would not produce any documents without a court order. Mr Nathan, appearing for Mr Bharj, sought a court order. That application was heard by an adjudicator, Mr Care, on 24 March 1988. Mr Care made an order for discovery, and his ruling and the order that he made are to be found at pages 24 and 25 of the agreed bundle of documents. The Home Office wrote to the clerk to the adjudicator on 29 April 1988 seeking to have the matter of discovery reopened. The hearing was resumed before the adjudicator on 19 May of last year, but the adjudicator was not prepared to reopen the issue or to alter his ruling that he had power to order discovery of documents. The Home Office now come to the High Court seeking certiorari to quash the adjudicator's order and a declaration in these terms: that an adjudicator has no power, whether under the Immigration Act 1971, the Immigration Appeals (Procedure) Rules 1984, or otherwise, to order the discovery of documents, whether specifically or generally, to be made by a party to an appeal. Mr Laws represented the Home Office at the hearing of this matter. Mr Pannick appeared for the adjudicator, and Mr Bharj was represented by Mr Nathan and Mr Kothari. When the matter was before me, I reserved my decision because the Court of Appeal were due the following morning to deliver a judgment in a case called R v Secretary of State for the Home Department, ex parte Thirukumar (See now [1989] Imm AR 402). It was thought that passages in the Court of Appeal's judgment would be relevant to issues which arise in the present case. I now have a copy of the judgments of the Court of Appeal in that case, although that decision has not been officially reported and I do not have the corrected transcripts of those judgments. Were the Home Office correct in coming to this court, or should they have appealed to the Immigration Appeal Tribunal? That is the first question that arises. That question can be shortly answered. They are correct to come to the High Court to seek relief by way of judicial review. Mr Nathan at one time was going to argue to the contrary, but examination of the provisions relating to appeals from an adjudicator to the Immigration Appeal Tribunal shows that such an argument is not sustainable, and Mr Nathan did not pursue that submission. Consequently, I am satisfied that this application is properly made to this court. Mr Pannick, who appeared for the adjudicator, adopted this position: he conceded that the adjudicator was wrong in ruling that he had power to order discovery of documents. Mr Pannick raised this point: whether the court should, in its discretion, refuse to grant relief in this case. Mr Pannick did not seek to persuade me to come to any particular view on that matter; he merely submitted that I might refuse to grant relief if I formed the view that an order under rule 27(1) of the Procedure Rules was inevitable in this case. Did the adjudicator have power to order discovery of documents? In my judgment he did not. The office and jurisdiction of an adjudicator are the creations of statute, namely section 12 of the Immigration Act 1971 which continued the Immigration Appeal Tribunal and adjudicators created by the Immigration Appeals Act 1969. Sections 13-17 set out the cases and circumstances in which certain persons may appeal to an adjudicator. Section 14(1) is the section which is relevant to the present case. Mr Nathan, on behalf of Mr Bharj, has pointed out that in this case the Secretary of State has not certified that Mr Bharj's departure from the United Kingdom would be conducive to the public good under section 14(3), thus Mr Bharj's power to appeal to the adjudicator against the Secretary of State's decision was unqualified. Section 19(1) requires an adjudicator to allow an appeal subject to the provisions of section 13(4) and section 16(4) which relate to illegal entrants, if he considers either that the decision or action against which the appeal is brought was not in accordance with the law, or with the relevant immigration rules, or where the decision or action involved the exercise of a discretion, and the discretion should have been exercised differently. In any other case, the adjudicator must dismiss the appeal. Section 19(2) empowers the adjudicator to review any determination of a question of fact on which the decision or action was based. Section 22(1) of the 1971 Act empowers the Secretary of State to make rules of procedure for regulating the exercise of the rights of appeal conferred by part II of the Act, and for prescribing the practice and procedure to be followed on or in connection with appeals and other matters, preliminary or incidental to such appeals. By section 22(7) this power is to be exercised by statutory instrument, which should be liable to amendment by a resolution of either House of Parliament. By section 22(2) the rules of procedure may include provision conferring on adjudicators such ancillary powers as the Secretary of State thinks necessary for the purpose of the exercise of their functions. Section 22(3) is instructive, because it requires that the rules of procedure shall provide that any appellant shall have the right to be legally represented. So Parliament applied its mind to the matters which had to be included in the rules of procedure and was content to leave it to the Secretary of State to include or omit other matters as the Secretary of State saw fit. In my judgment there can be no question of adjudicators enjoying an inherent power to control the procedures relating to the appeals that they hear, analogous to the inherent powers of the High court to control its procedure. If a power has not been given to an adjudicator by the procedural rules, the adjudicator does not have that power however desirable it might be thought that he should have such a power. Mr Nathan made submissions to me based on the principle of fairness or natural justice. Such submissions inevitably evoke a sympathetic response, but I fear that a reading of the Act leads inexorably to the conclusion that Mr Laws' succinct submission that fairness cannot confer a power on an adjudicator, only the procedure rules can, is correct. Do the procedure rules confer on the adjudicator a power to order a party to discover documents which are relevant and which are necessary for fairly disposing of the proceeding? Certainly there is no rule which gives the adjudicator such a power in express terms. The adjudicator believed that he had such a power. He relied on rule 29(2) of the Immigration Procedure Rules 1984, which reads: "In any proceedings before an appellate authority, no person shall be compelled to give any evidence or produce any document which he could not be compelled to give or produce on the trial of an action in that part of the United Kingdom in which the proceedings are conducted." The adjudicator appreciated that that rule did not confer on him a power to order discovery, but he considered that the rule made no sense unless adjudicators had the power to order discovery. That point is answered by a reading of rule 27, summoning of witnesses, which is expressly subjected to the provisions of rule 29(2). Thus a witness can be required by summons to attend the hearing of an appeal to answer any questions or produce any documents which relate to any matter in question in the appeal which are in his custody or under his control, subject to the provisions of rule 29(2). Read in conjunction with rule 27(1), rule 29(2) makes sense, although the adjudicator has no power to order the discovery of documents. Rule 28 was the next rule relied upon by the adjudicator. The words in rule 28 on which the adjudicator constructed the power to order discovery were these: ". . . After complying where appropriate with the provisions of Rule 8" -- and I observe that that rule imposes a duty on the respondent to produce an explanatory statement -- "or 11(3)" -- and I observe that that rule covers the determination of a preliminary issue -- "the appellate authority shall conduct the proceedings in such manner as it considers appropriate in the circumstances for ascertaining the matters in dispute and determining the appeal." Unhappily the adjudicator did not read the opening words of rule 28, which are "Subject to the provisions of Rules 18" -- which relates to evidence -- "and 34" -- which relates to the absence of the appellant or other party -- "at any hearing by an appellate authority". Then follow sub-rules (a) and (b) which show that the rule is concerned with the conduct of the hearing, speeches, calling of witnesses, cross-examination, and so forth, and has nothing to do with the discovery of documents. The final rule on which the adjudicator based his decision was rule 25, power to require particulars, and which reads: "An appellate authority may at any time request any party to the appeal to furnish any particulars which appear to be requisite for the determination of the appeal and thereupon that party shall send the particulars to the appellate authority." This rule which places on the party requested a duty to send the particulars sought, relates to particulars. It is important that the rule uses the word "particulars" and not the word "documents". The word "documents" appears elsewhere in the rules, most notably in rule 27. Had rule 25 been intended to enable an adjudicator to require the production of documents, it would, in my judgment, have said so by using the word "documents" instead of or in addition to the word "particulars". The meaning of the word "particulars" is well established in English procedural law. It means the details of the case that is being advanced by the party requested to furnish the particulars, which will make that case plain to the tribunal and to the other party or parties to the matter. Mr Nathan, in his submission, sought to rely on rules not mentioned by the adjudicator in his ruling, namely rules 10 and 37(b). Rule 10 reads: "Subject to the provisions of Rule 30(2) (cases involving forgery of documents) the appellate authority shall cause copies of all notices and other documents required for an appeal to be supplied to every party to the appeal." This rule is an administrative provision. Documents such as the notice of appeal, the grounds of the appeal, the explanatory statement, which the parties are required by the rules to submit to the adjudicator or the Immigration Appeal Tribunal, are to be copied and provided to the other parties by the appellate authority. There is thus no obligation on the party who brings such documents into existence to serve copies on the other parties. This rule has nothing to do with the power to order discovery of documents. Rule 37 reads: "An appellate authority may -- (b) give directions on any matter arising in connection with an appeal to any party who requests them." The remainder of rule 37 is concerned with such matters as postponements or adjournments of hearings. I have no doubt that what is contemplated by rule 37(b) is the giving of directions where it has been decided that there should be combined hearings of two or more appeals under rule 36, or where it has been decided under rule 11 that a preliminary issue should be tried or, again, where there has been an order for the transfer of proceedings under rule 33. Rule 27(1) expressly confers on adjudicators a power similar to that given to the High Court by Ord 38 r 14 to subpoena witnesses. Had Parliament or the Secretary of State intended to confer on an adjudicator a power to order discovery of documents, a power equally well-known in English procedural law, it is inconceivable that they would not have done so using terms to create such a power that were as clear as the terms of rule 27(1) were in creating a power to subpoena witnesses. It is not without significance that Parliament, in section 22(6) of the 1971 Act, anticipated the power created by rule 27(1) but did not anticipate the creation of a power in the appellate authority to order discovery and inspection of documents. Mr Nathan, in the course of his submissions, relied upon the decision in West Midlands Passenger Executive v Singh [1988] 2 All ER 873, where the court was concerned with an industrial tribunal's power to order discovery. I find that authority to be helpful on this point in this way: the rules governing the procedure of industrial tribunals gave industrial tribunals a power to order discovery expressly in terms which left no doubt of the nature and extent of the power being confirmed. The rule (Rule 4 of schedule 1 of the Industrial Tribunals (Rules of Procedure) Regulations 1985 (SI 1985: 16). For a full discussion of the powers of discovery given to industrial tribunals see RJ Harvey (ed) Industrial relations and employment law, London (1989) Div X, para 105 et seq) stated: "A tribunal may . . . on the application of a party to the proceedings . . . grant to the person making the application such discovery . . . of documents as might be granted by a county court." I therefore conclude that the adjudicator's ruling was wrong, and that adjudicators do not have the power to make the order that the adjudicator purported to make on 24 March 1988. The next issue is whether, despite that conclusion, I should in my discretion refuse to grant the relief sought. The first point under this issue is that of delay. Leave to move was granted in this case by Schiemann J on 18 July 1988, having been applied for by the Home Office on 23 June 1988. The events which occurred between the adjudicator's decision and the application for leave to move are set out in paragraphs 9, 10 and 11 of the affidavit of Mr Wrench, a principal in the refugee section of the Immigration and Nationality Department of the Home Office; Mr Nathan takes no point based on delay. In the circumstances, I consider that the application was made promptly, and I do not consider that the granting of relief will be detrimental to good administration. Mr Nathan does argue however that fairness requires that this relief should be refused. First, Mr Bharj has been waiting a long time to have his application for political asylum finally determined. He has, on more than one occasion in recent years, considered going to the United States of America, or to Norway, where he has relatives, but he has been told that if he leaves the United Kingdom he may not be allowed to return to give evidence at the hearing of his appeal. Mr Bharj should not be kept in this position, submits Mr Nathan, of uncertainty any longer, and certainly not for the extra period that the granting of relief will entail. Second, if relief is granted, although Mr Bharj in theory can make an application under rule 27(1), in practice such an application would be ineffective to obtain the record of the interview, because the identity of the immigration officer who interviewed Mr Bharj is unknown. Thirdly, submits Mr Nathan, fairness requires the disclosure of the notes of interview, as the Divisional Court in R v Secretary of State for the Home Department, ex parte Thirukumar, decided on 21 December 1988, recognized. Fourthly, submits Mr Nathan, the lapse of time since the interview on 21 July 1983 and the preparation of the explanatory statement on 12 January 1987 is such that Mr Bharj cannot now be expected to recall what he said nor can he, in effect, challenge the summary of that interview contained in the explanatory statement. In my judgment, there is no unfairness in granting the relief sought by the Home Office in this case. It is true that Mr Bharj has waited a long time and his application is still not finally resolved. Nevertheless he lives in this country and carries on activities of his own choosing in this country. Indeed it is clear that the Indian Government has protested about the freedom of action which the law of this country affords to Mr Bharj. I do not accept that Mr Bharj will suffer hardship from that point of view if the relief sought is granted. Nothing in his affidavit supports such a conclusion. Would an application under rule 27(1) be ineffective to produce the record of interview? I do not think so. The adjudicator can be asked to issue a summons in respect of Mr Godley, the author of the explanatory statement, or in respect of Mr Wrench, and I have no doubt that either of those persons would be able to bring with them to the hearing the notes of the interview. The adjudicator, in his findings, said of the documents requested, namely the record of interview and the correspondence between the Home Office, Foreign Office, the Commonwealth Office and the High Commission in India: "I do not yet know how relevant they are, but in all the circumstances and without going into this aspect in great detail, it seems to me that they could be documents, in the absence of which, the appellant might claim that justice had not been done. As to the interview notes, I am mindful of what I have noted to be seems to me an unsatisfactory practice in other cases, that is that such notes are not usually read over to and signed by an interviewee, and thus I do not know if they record fully and accurately what the appellant or the interviewee would have said he said at the time." If Mr Bharj does dispute the accuracy of the summary of the interview contained in the explanatory statement, and the Home Office do not produce the notes, then the Home Office will be at risk of the adjudicator drawing an adverse inference from the failure to produce the notes of interview at that stage. The other alternative is that this court, in the light of the Court of Appeal's decision in ex parte Thirukumar, in which the Court of Appeal said that the highest standards of fairness have to be observed in political asylum cases, would conclude that the highest standards of fairness have not been met by the Home Office, consequently any decision adverse to Mr Bharj by the adjudicator should be quashed. I have little doubt that in the light of the Court of Appeal's decision in that case, the Home Office will produce the notes of interview in this case, with or without any order being made by the adjudicator under rule 27(1). Finally, is it inevitable, if the relief sought is granted, that an adjudicator would make an order under rule 27(1), that the witness attend the hearing of the appeal and bring with him the documents, the subject of the order made on 24 March 1988? In my judgment that is not inevitable. It is highly likely in the case of the interview record that such an order would be made. However, with respect to the correspondence sought on behalf of Mr Bharj, Mr Nathan conceded that there might well be issues of privilege which were not argued before the adjudicator on 24 March 1988 by the Home Office, because they were not then in a position to make such submissions to the adjudicator. In my judgment, the proper exercise of my discretion in this case requires me to grant the relief sought. Accordingly I quash the order of the adjudicator made on 24 March 1988 and I make this declaration: that an adjudicator has no power, whether under the Immigration Act 1971, the Immigration Appeals (Procedure) Rules 1984, or otherwise, to order the discovery of documents, whether specifically or generally, to be made by a party to an appeal.

DISPOSITION:

Declaration accordingly

SOLICITORS:

Treasury Solicitor, Thakrar & Co, Southall.

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