R v. Immigration Appeal Tribunal, Ex parte Michael Dennis Francis Pollicino

R v Immigration Appeal Tribunal ex parte Michael Dennis Francis Pollicino

Queen's Bench Division

[1989] Imm AR 531

Hearing Date: 24 May 1989

24 May 1989

Index Terms:

Appeal -- to Tribunal -- application signed and submitted by appellant's surety without appellant's knowledge or consent -- application indicated that further grounds would follow -- request for oral hearing of application -- none held -- Tribunal dismissed application before any further grounds received -- whether Tribunal acted fairly -- subsequent out of time application by appellant himself -- whether Tribunal could entertain it. Immigration Act 1971 s 21: Immigration Appeals (Procedure) Rules 1984 rr 15(2), 16(2)(c), 16(3), 16(4), 16(6).

Held:

The applicant was an overstayer. An appeal against the Secretary of State's decision to initiate deportation proceedings was dismissed by an adjudicator. The applicant had been on bail with two sureties: on the dismissal of his appeal he was detained. One of his former sureties, without his knowledge or consent submitted within the mandatory time limit, an application for leave to appeal to the Tribunal. It indicated that better and further particulars and further grounds would follow: it requested an oral hearing of the application for leave to appeal. That application was considered by the Tribunal and leave to appeal was refused. Subsequently the appellant himself submitted an application for leave to appeal but that was received by the appellate authorities out of time. It was argued before the court on application for judicial review that the Tribunal had erred in not arranging an oral hearing of the application. Further it had ignored the assertion that further grounds would be submitted. It should have waited for those or at least indicated that the application would be considered after a date laid down by it, by which further grounds would have to be submitted. Held 1. The Tribunal had clearly considered whether an oral hearing should be held and had properly within its discretion concluded no special circumstances existed to justify such a hearing. 2. It had however acted unfairly in not waiting for the further promised grounds to arrive or indicating that they would have to be submitted by a certain date. 3. Moreover the application before it, being neither from the applicant or his authorised representative was not a valid application within rule 16(3) of the 1984 Procedure Rules. 4. That the Tribunal was unaware, in time, that the appellant had disowned that application appeared from the evidence not to be his fault but that of his then solicitors: for that reason as well, the Tribunal's decision would be quashed. 5. The appellant's own application however was submitted to the appellate authorities outside the mandatory time limit. It could not therefore be sent back to the Tribunal for consideration. The Secretary of State might consider exercising his powers to refer it to the Tribunal pursuant to s 21 of the 1971 Act.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Hamida Begum and ors [1988] Imm AR 199.

Counsel:

N Blake for the applicant; Miss P Baxendale for the respondent PANEL: Roch J

Judgment One:

ROCH J: This is an application for judicial review by Michael Dennis Francis Pollicino of two decisions of the Immigration Appeal Tribunal; the first given on 17 January 1988, and the second on 3 February 1988, when the Immigration Appeal Tribunal refused to review its decision of 17 January 1988. The relief sought is certiorari to quash those decisions. The history of this matter is that the applicant is a citizen of the United States of America and aged 37. He has a wife and child who are both resident in the United Kingdom at the present time. He came to the United Kingdom on 6 January 1984. He came on his own; his wife and child did not come to this country until later in that year -- I believe in July of that year. On 6 January 1984 the applicant was granted leave to enter the United Kingdom as a visitor for a period of six months. That permission was subject to a condition which prohibited Mr Pollicino taking employment in the United Kingdom. In fact Mr Pollicino has since January 1984, as his affidavits disclose, engaged in various business activities on his own behalf, and has also been involved in the floating and running of a company. On 5 July 1984 Mr Pollicino asked for leave to remain in the United Kingdom for a further twelve months on business. That application was refused by the immigration authorities on 12 July 1984. Mr Pollicino lodged an appeal to an adjudicator on 4 August 1984. That appeal was dismissed by the adjudicator on 19 September 1984 on a preliminary issue, namely, that the appeal under rule 12(e)(ii) of the Immigration Appeals (Procedure) Rules 1972, which applied at that time, was out of time, and that there was no special circumstance revealed in the explanation for the delay making it just and right to allow the appeal to proceed to a hearing. Mr Pollicino appealed from that decision of the adjudicator to the Immigration Appeal Tribunal, who heard his appeal on 29 October 1984 and came to the same conclusion as the adjudicator had reached, namely, that the notice of appeal was out of time and there was no special circumstance which made it just and right to allow the appeal to proceed to a hearing. Consequently, by that time, Mr Pollicino was in this country without leave to be here. Several years passed, and on 1 May 1987 the Secretary of State made a deportation order against Mr Pollicino under section 3(5) of the Immigration Act 1971. Mr Pollicino immediately made a further application for permission to remain in the United Kingdom and he appealed to the adjudicator against the deportation order. The adjudicator heard that appeal and came to a conclusion adverse to Mr Pollicino on 11 January 1988. Up until that moment Mr Pollicino had been on bail. That bail was supported by two sureties; a Mr Richbell, who is a solicitor and an officer with the Law Society, and his daughter, who holds a responsible position with the well-known firm of accountants Arthur Young. Unhappily, neither of those persons were able to be at the adjudicator's announcement of his determination. The adjudicator came to the view that he did not have authority to extend Mr Pollicino's bail, having determined the appeal against Mr Pollicino and upheld the deportation order. Mr Pollicino was removed to the Latchmere Detention Centre where he remained until February 1988. An application was submitted to the Immigration Appeal Tribunal on 14 January 1988. That application is to be found in the bundle of documents at pages 52-54. It is signed by Patricia Richbell. It gives some particulars of Mr Pollicino, although not his full christian names. The grounds of the appeal read in this way: "The decision was not in accordance with immigration law and the rules. Full grounds to follow once the appellant, who is presently representing himself, is released from detention. The appellant requests an oral hearing." Attached to that notice was page 54 of the bundle, and further grounds of appeal are set out on page 54. That page records: "Better and further particulars, further evidence and further grounds to follow. The appellant requests an oral hearing." The decision was given by a single member of the Immigration Appeal Tribunal, Mr GW Farmer, the Vice-President, on 17 January 1988. That was a Sunday, and it may well be the reason for the decision being dated the 17 was that that was the day Mr Farmer considered the application on the papers. Mr Farmer, in the determination, cited the grounds of appeal which appeared on the first page of the application and which I have already cited. Then the determination goes on in this way: "The Tribunal has considered the grounds submitted in support of the application, the documentary evidence and the adjudicator's determination. The Tribunal considers that the Adjudicator's findings of fact were not against the weight of the evidence and were properly supported by it. In the opinion of the Tribunal, the determination of the appeal does not turn upon any arguable point of law and there are no other circumstances which would merit the granting of leave to appeal. Leave to appeal to the Tribunal is refused." The story continues in this way. On 19 January 1988 Mr Pollicino wrote a letter to the Immigration Appeal Tribunal which appears at pages 21-24 of the agreed bundle. I shall return to what is said in that letter in a little while. Mr Pollicino also prepared an application for the Tribunal for leave to appeal in the correct form, which appears at pages 63 and 64 of the agreed bundle. Attached to that were three pages of grounds of appeal which are pages 65, 66 and 67. That application is dated 19 January 1988 and is signed by Mr Pollicino, and in his letter of the same date he refers to the fact that he had that day signed such an application. He also stated in that letter that the Immigration Appeal Tribunal's decision of 17 January had been made on an application which he, Mr Pollicino, neither authorised nor sanctioned. He makes it clear in the course of the letter that although Miss Richbell was no doubt acting in what she thought were Mr Pollicino's best interests, she had done so without his knowledge and without his authorisation or consent. He makes it clear that he was not adopting that application, that is to say the application of 14 January, but had signed, and would submit, his own application. It is clear that on that day he had his grounds of appeal ready and finalised, and that he was aware of the immigration rules relating to appeals to the Immigration Appeal Tribunal. Unhappily Mr Pollicino sent his application not direct to the Immigration Appeal Tribunal, but to solicitors acting for him at that time. On 19 January, of course, he still had some six days within which to submit an application to the Tribunal. In the event, the application did not reach the Tribunal until 28 January 1988, three days outside the 14-day period permitted by rule 15(2) of the Immigration Appeals (Procedure) Rules 1984. That application was accompanied by Mr Pollicino's letter of 19 January, in his own handwriting, and by a letter from his then solicitors, dated 27 January 1988, the first two paragraphs of which read: "We now act on behalf of Michael Pollicino who is at present being held in custody at Her Majesty's Remand Centre, Latchmere House. "We have had an opportunity of having a conference with counsel and are clearly of the view that Mr Pollicino was not given an opportunity to be heard at the last hearing. Further certain representations forwarded to the Tribunal by a Miss Patricia Richbell were certainly not authorised by our client and therefore should not have been taken into consideration." In making this application Mr Pollicino has sworn an affidavit dated 22 March 1988. In the thirteenth paragraph of that affidavit -- which is to be found at page 29 of the bundle of documents -- he says this: "I refer to my Notice of Application for leave to appeal to the Immigration Appeal Tribunal MDFP 2" -- I note that that refers to the application signed by him dated 19 January 1988 -- "following the unauthorized representations which were made on my behalf and without my knowledge." There is also an affidavit from Patricia Lesley Richbell, the important paragraph of which is paragraph eleven, and that reads: "In my concern that the appellant was unable to submit the documentation himself and in my desire to secure his early release, I completed the appeal and bail application myself, utilising as the grounds of appeal some of the initial information provided by the appellant for typing and a catch-all sentence provided to me by the United Kingdom Immigration Advisory Service over the telephone. I submitted this to the Immigration Appeal Tribunal on 14 January 1988 along with a bail application. At no time did I obtain the authorisation of the Appellant, nor was the Appellant aware of my actions." In the request to the Immigration Appeal Tribunal to reconsider its decision of 17 January 1988, a document was signed by counsel, which appears at pages 17 and 18 of the bundle. The second paragraph contains these sentences: "In relation to the Appellant's application for leave to appeal to the Immigration Appeal Tribunal, no application or representations by him were considered. Indeed unauthorised representations were made by a third party without either his authorisation or knowledge." Against that background and that evidence, Mr Blake to whom I am greatly indebted for the clear and persuasive submissions that he has made, submits that the decision of the Immigration Appeal Tribunal on 17 January was wrong and should be quashed. Mr Blake submits that the decision was wrong for these reasons. First of all, the decision ignored the request for an oral hearing, and made no ruling on that request and made no determination as to whether under rule 16(6) of the Immigration Appeal (Procedure) Rules 1984 there were special circumstances rendering an oral hearing of the application for leave desirable. Miss Baxendale, who has been equally helpful in the submissions she has made, resists that ground by saying that Mr Farmer refers expressly to the request for an oral hearing. The normal procedure is that there is no oral hearing, and that the application dated 14 January 1988 refers to no matter which could amount to a special circumstance rendering a hearing desirable. In my judgment those are sound arguments and I would not overturn the decision of the Immigration Appeal Tribunal on that first ground advanced by Mr Blake. Mr Blake's second ground has more substance to it. It is that Mr Farmer ignored the statement in the application that further grounds would be advanced in support of the application for leave to appeal. Mr Blake makes the point that even if the grounds have to be advanced within the 14 day period specified in rule 15(2), on 17 January there was still some eight days to go before that period expired. But in any event, Mr Blake submits, it is a well-established practice, and indeed there is judicial authority, namely, the authority of the Queen's Bench Division, in the case of R v Immigration Appeal Tribunal ex parte Hamida Begum and others [1988] Imm AR 199, that rule 16(2)(c), which requires the notice of appeal to include the grounds on which the appellant, or applicant, as the case may be, intend to rely, is not mandatory but simply directory; and that under rule 16(4) the Immigration Appeal Tribunal has the power to permit the grounds to be varied or amplified during the course of the appeal or application. Consequently, says Mr Blake, the Immigration Appeal Tribunal here, in the face of the statement that further grounds would be submitted, should have at the very least awaited the further period of a week before reaching a decision, or followed the well-established practice of requesting the further grounds, specifying a time within which the further grounds had to be submitted, and postponing a decision until that period had expired. Mr Blake submits that the duty of the Tribunal to act fairly required the Immigration Appeal Tribunal to await the further grounds, or at the very least to call for them within a specified period and allow that period to elapse before reaching its decision. In my judgment those criticisms of the Tribunal's decision are well-founded. But there is a further reason, in my judgment, why the decision of the Tribunal should be quashed and it is this: that the application which the Tribunal considered was not the applicant's application, it was not Mr Pollicino's application. Nor was it the application, on the evidence before me, of any person who was authorised by Mr Pollicino to make an application. Rule 16(3) of the Immigration Appeals (Procedure) Rules provides: "The notice or application shall be signed by the appellant, or applicant, as the case may be, or by a person duly authorised by him in that behalf . . ." In my judgment the defect here is not merely one of form in the Notice of Appeal; a valid application for leave to appeal can only be made by or on behalf of a person having standing to appeal. In this case that person was Mr Pollicino. An application can properly be made on behalf of a person who has standing to appeal if it is made by someone who is duly authorised by such a person. In this case the evidence is all one way. Miss Richbell was not duly authorised; she was acting on her own initiative, without authority and without the knowledge of Mr Pollicino. When he learnt of what she had done in his letter of 19 January he disowned her action and determined to submit his application. The fact that that was not done in time may well have been the fault of those who were at that time instructed by Mr Pollicino. Consequently, for that reason also, I quash the decision of the Immigration Appeal Tribunal given on 17 January 1988, and also their decision of 3 February 1988 where they decline to review the decision of 17 January 1988. However, I do not direct that this matter go back to the Immigration Appeal Tribunal because in view of the conclusion that I have reached in my judgment there is no application which the Immigration Appeal Tribunal could consider. It is well-established that the time limit of 14-days, set by rule 15(2), is mandatory and absolute. It may well be that the result of this decision will enable Mr Pollicino to invite the Home Secretary to exercise his powers under section 21 of the Immigration Act 1971, to refer the matter to the Immigration Appeal Tribunal. However, that is not a matter for this court, nor is it a matter on which it would be proper for me to comment. If such an application is made that is wholly a matter within the discretion of the Secretary of State.

DISPOSITION:

Application granted

SOLICITORS:

Jane Coker & Co, London N7; Treasury Solicitor