R v. Immigration Appeal Tribunal and Immigration Appeal Adjudicator (Rg Care), Ex parte Secretary of State for the Home Department

Queen's Bench Division

 

[1990] Imm AR 166

Hearing Date: 27 July 1989

27 July 1989

Index Terms:

Practice and Procedure -- appeal to Tribunal -- notice received after expiry of time limit -- whether Tribunal had power to extend period -- whether empowered so to extend period when there had been an attempt to lodge the notice in time. Interpretation Act 1978 s 7: Immigration Appeals (Procedure) Rules rr 15(2), 16, 38, 44(1).

Appeal -- refusal of leave to enter as refugees -- returned to home country -- adjudicator allowed appeal -- direction that appellants be granted indefinite leave on their return to United Kingdom -- whether adjudicator empowered so to direct.

Refusal of leave to enter as visitors -- subsequent application for political asylum -- refused -- whether applicants had right of appeal to adjudicator against that second refusal. Immigration Act 1971 ss 3(1)(a), 3(2), 4(1), 11, 13, sch 2 paras 1(3), 6(3), 8, 16(1), 16(2), 21(1): HC 169 (as amended) para 73.

Held:

Five citizens of Sri Lanka had been refused political asylum and removed from the United Kingdom. Three had sought asylum, and leave to enter only on that basis, immediately on arrival: two had sought leave to enter as visitors and only when that application was refused, had they made an application as refugees. On appeal to an adjudicator, all five were successful. The adjudicator directed that two of the appellants, on their return to the United Kingdom should be granted indefinite leave. The Secretary of State sought to challenge the adjudicator's findings and directions. He was of the view that the adjudicator had no power to direct that any of the appellants should, without examination of their cases on their return, be granted indefinite leave. He also considered that the adjudicator had no jurisdiction to entertain an appeal against the second refusal (for political asylum) in the cases of those appellants who had already been refused leave to enter as visitors. The Secretary of State accordingly sought to serve a notice seeking leave to appeal to the Tribunal. The notice was incorrectly addressed and returned by the Post Office. When re-addressed it was received by the secretary to the Tribunal out of time. Following Armstrong and Ashrafi the President, refusing leave to appeal, held he had no discretion to extend the time limit under the Procedure Rules. The Secretary of State sought judicial review of both that refusal and the determination of the adjudicator. Held: 1. The Tribunal had no power to extend the time limit for the serving of an application for leave to appeal. It made no difference that the Secretary of State had sought but failed to serve the notice in time: Armstrong could not be distinguished on that basis. Until a valid notice was received, the Tribunal had no jurisdiction to invoke rule 38 of the Procedure Rules, to correct a mistake. In Ashrafi it had in any event been doubted whether a failure to apply in time was an irregularity within the meaning of rule 38. 2. The failure of the Secretary of State to pursue the appeal before the Tribunal was the consequence of a mistake in addressing the notice: it was not an intentional avoidance of the statutory appellate procedures. By reason of the mistake an appeal was no longer possible. It would not therefore be contrary to the principles laid down in Swati, to grant discretionary relief by way of judicial review. Before the court the parties agreed that the adjudicator had no power to direct that any of the appellants should be granted indefinite leave on their return to the United Kingdom. Their cases would be subject to examination by the immigration officer. The court was divided on whether a right of appeal lay to an adjudicator in respect of the second refusal (of asylum) where the appellant had already been refused leave to enter as a visitor. Lloyd LJ accordingly withdrew his judgment in favour of the Secretary of State's position so that the matter might be considered by the Court of Appeal.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Armstrong [1977] Imm AR 80. Ashrafi v Immigration Appeal Tribunal [1981] Imm AR 34. Calveley v Chief Constable of Merseyside Police [1986] 2 WLR 144. R v Secretary of State for the Home Department ex parte Swati [1986] 1 WLR 477: [1986] Imm AR 88. R v Immigration Appeal Tribunal ex parte Hamida Begum and ors [1988] Imm AR 199. Ashraf v Immigration Appeal Tribunal [1989] Imm AR 234. R v Secretary of State for the Home Department ex parte Amarasingham (unreported, QBD, 12 May 1989) R v Secretary of State for the Home Department ex parte Labiche [1990] Imm AR 157.

Counsel:

J Laws and R Jay for the Secretary of State; D Pannick for the Immigration Appeal Tribunal and the adjudicator; N Blake for Vathanan and Rasalingham; A Riza for Sivakumaran, Skandarajah and Vilarajah PANEL: Lloyd LJ, Auld J

Judgment One:

LLOYD LJ: The Secretary of State for the Home Department seeks an order of certiorari to quash a decision of the Immigration Appeal Tribunal given on 19 April 1989, whereby the Tribunal decided that it had no jurisdiction to hear an appeal by the Secretary of State from the determination of an adjudicator. The reason for the decision was that the Secretary of State had failed to apply for leave to appeal in time. By his determination, dated 13 March 1989, the adjudicator, Mr Care, had allowed the appeal of five Sri Lankan Tamils from a decision of the immigration officer refusing them the status of political refugees, and giving directions for their removal to Sri Lanka in February 1988. The adjudicator determined that the five appellants were all entitled to political asylum and gave directions for their return to the United Kingdom with the minimum delay. The Secretary of State wished to appeal against that determination. He had 14 days in which to do so. Paragraph 15(2) of the Immigration Appeals (Procedure) Rules 1984 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." Paragraph 44(1) of the rules provides: "Any notice or other document required or authorised by these Rules to be sent or given to any person or authority may be sent by post in a registered letter or by the recorded delivery service or delivered -- (a) in the case of a document directed to the Tribunal, to the secretary of the Tribunal: (b) in the case of a document directed to an adjudicator, to any person employed as his clerk; (c) in the case of a document directed to the Secretary of State, to the Immigration and Nationality Department (Appeals Section), the Home Office; (d) in the case of a document directed to an immigration officer or entry clearance officer, to the address specified in the statement issued in relation to the decision or action in question under Regulation 4 of the Immigration Appeals (Notices) Regulations 1984 or, if no such statement has been issued, to the address specified in sub-paragraph (c) above; (e) in the case of a document directed to any other person, to his address for service specified in any notice given under these Rules, or to his last known or usual place of abode, and, if sent or given to a person representing a party to an appeal in accordance with Rule 26(1), shall be deemed to have been sent or given to that party." So the application for leave to appeal should have been addressed to "The Secretary of the Immigration Appeal Tribunal, Thanet House, Strand": it was in fact addressed to "The Secretary, Treasury Solicitor, Thanet House, Strand". There was no such person at Thanet House. On 30 March, somebody, presumably an employee of the Post Office, stamped the envelope, "Gone away". On 3 April the letter was returned to the Home Office through the dead letter office. On 4 April the Home Office sent a copy of the notice to the Immigration Appeal Tribunal, correctly addressed, which the Immigration Appeal Tribunal received on 5 April. Mr David Neve, President of the Immigration Appeal Tribunal, directed that the application for leave to appeal should be argued by counsel on behalf of the Secretary of State. Counsel submitted that the Immigration Appeal Tribunal could cure the irregularity in the address by virtue of paragraph 38 of the Procedure Rules. Paragraph 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." Mr Neve held that the Immigration Appeal Tribunal had no power to extend the time for serving the notice of application. After referring to R v Immigration Appeal Tribunal ex parte Armstrong [1977] Imm AR 80, and Ashrafi v Immigration Appeal Tribunal [1981] Imm AR 34, he concluded: "I say at once that if I considered I could properly do so I would grant leave. However, in the light of the Court of Appeal's view that ^failure to apply for leave to appeal within the period of 14 days was not an irregularity within the meaning of Rule 38', I do not consider that I have any jurisdiction properly to do so." The Secretary of State now applies for judicial review of the decision of the Immigration Appeal Tribunal. If he fails, he applies for judicial review of the determination of the adjudicator. Immigration Appeal Tribunal Mr Laws, who did not appear as counsel before Mr Neve, has taken a new point. He argues that there was indeed service within 14 days when the letter was delivered to Thanet House, even though it was returned unopened. Mr Pannick is entitled to observe that Mr Laws' new point is nowhere reflected in his grounds of application. Nor was it argued before McCowan J on the application for leave to apply for judicial review. Is it a good point? It is convenient at this stage to refer to paragraph 16 of the Procedure Rules, which provides: "(1) Subject to the following provisions of this Rule, notice of appeal or an application for leave to appeal from an adjudicator to the Tribunal shall, respectively, be given or made by furnishing, in writing, and serving on an adjudicator or the Tribunal, as appropriate, the particulars specified in paragraph (2) below. (2) The particulars referred to in paragraph (1) above shall consist of -- (a) the full name, address, date of birth and nationality or citizenship of the appellant or applicant, as the case may be; (b) particulars of the determination of the adjudicator to which the notice or application, as the case may be, relates; and (c) the grounds on which the appellant, or applicant, as the case may be, intends to rely. (3) 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 or, in the case of an appellant or applicant who is a minor or who is for any reason incapable of acting, by any person acting on his behalf. (4) The grounds of an appeal or application contained in particulars furnished in accordance with paragraph (1) above may be varied or amplified during the course of the appeal or application. (5) Notwithstanding the provisions of paragraph 1 above, an application to an adjudicator for leave to appeal may be made orally by the applicant or by a person duly authorised by him in that behalf or, in the case of an applicant who is a minor or who is for any reason incapable of acting, by any person acting on his behalf: but, if leave is granted, the requirements of paragraph (1) above, relating to the giving of notice of appeal shall be complied with, in accordance with the time-limits specified in paragraphs (2) and (3) of Rule 15 above, except that the notice of appeal shall be served on the adjudicator instead of on the Tribunal. (6) An application for leave to appeal shall be disposed of without a hearing unless the adjudicator or, as the case may be, the Tribunal to whom the application is made considers that special circumstances render a hearing desirable. (7) Where an adjudicator grants leave to appeal he shall endorse on or attach to the written application made in accordance with paragraph (1) above or, as the case may be, the notice of appeal served on him in pursuance of paragraph (5) above, notice in writing of his decision, and he shall transmit the application or notice of appeal, together with the endorsement or notice of his decision, to the Tribunal; and in any such case notice of appeal shall be deemed to have been duly given to the Tribunal. (8) Where the Tribunal grants leave to appeal on an application made in accordance with paragraph (1), notice of appeal shall be deemed to have been duly given to the Tribunal." Mr Laws argues that the compliance with paragraph 44 is not a necessary condition of service for the purpose of paragraph 16. It provides that service may be effected in the manner prescribed, not that it must be so effected. Thus, if the letter was incorrectly addressed, as it was here, but was then delivered by hand within 14 days, there would be good service for the purpose of paragraph 15(2). So far I have no difficulty in agreeing with Mr Laws. If the letter were delivered by hand to the secretary of the Tribunal there would be good service on any view, since paragraph 44 covers delivery as well as sending by post. If it were delivered to someone other than the secretary, for example, the President, I would expect it to be regarded as good service. For I agree that service is not conditional on strict compliance with paragraph 44; there may be other ways of effecting service so as to preserve the time limit under paragraph 15(2). I have greater difficulty with the next step in Mr Laws' argument. He submits that service was effected when the envelope containing the notice of application arrived at Thanet House. The inference is, he says, that this happened in ordinary course of post. Since the letter was posted on 22 March, it must have arrived before the 14 days expired on 28 March (27 March was a Bank Holiday). There are two objections to this line of argument. In the first place I am not prepared to infer that the letter arrived on or before 28 March. This is not a case where Mr Laws can rely on section 7 of the Interpretation Act 1978, since the letter was not properly addressed. All we know is that it was stamped "Gone away" on 30 March, and was not returned to the Home Office until 3 April. It is as likely that the Post Office attempted to deliver the letter on 30 March as on 28 March -- perhaps more likely. So I would not accept that the letter arrived on or before 28 March when the 14 days expired. The second objection is even more serious. We know from Mr Neve's determination that Thanet House contains other offices besides the Immigration Appeal Tribunal. There is a branch of the Lord Chancellor's Office. There are the offices of the Social Security Tribunal, and there is a firm of solicitors. When Mr Laws says that the letter "arrived" at Thanet House, what does he mean? The letter may indeed have crossed the threshold of the building. But there is not the slightest evidence that it ever got through the front door of the Immigration Appeal Tribunal. Since the letter was sent by recorded delivery, the postman may well have turned back before he got to the Immigration Appeal Tribunal at all. One cannot imagine that he would have gone round each office in turn looking for the Treasury Solicitor. So I am unwilling to assume that the letter ever in fact arrived at the offices of the Immigration Appeal Tribunal, let alone that it arrived on or before 28 March. If that is right, then the foundation of Mr Laws' new point is destroyed. Mr Laws went on to argue that, even if he is wrong on his new point, nevertheless he can rely on paragraph 38. This case can, he says, be distinguished from Armstrong and Ashrafi where there was no attempt at all to serve the notice within 14 days. Here there was undoubtedly an attempt to serve the notice. The attempt failed because the envelope was incorrectly addressed. The incorrect address on the envelope is an "irregularity" within the meaning of paragraph 38, and can therefore be corrected. I agree with Mr Laws that this case differs on the facts from Armstrong and Ashrafi. But it is covered by the same principle. In Armstrong, Lord Widgery CJ, after referring to rule 38, said, at page 84: "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 Rule 11 at all. Why have these other specific provisions if all that one really needed was Rule 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 Rule 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." If the Immigration Appeal Tribunal was unable to extend the time in Armstrong, because until a valid notice of application had been received, they had no jurisdiction to invoke paragraph 38, the same reasoning must apply here. If the letter was delivered on or before 28 March, and was an effective notice, the Secretary of State does not need paragraph 38. But if there was no effective delivery, then the Immigration Appeal Tribunal has no jurisdiction to invoke paragraph 38. As with any other inferior tribunal, it can only act within the limits of its jurisdiction. It cannot, by invoking paragraph 38, confer jurisdiction on itself. Brandon LJ (as he then was) in Ashrafi perhaps put the decision in Armstrong on a slightly different basis. He held that the failure to apply in time was not, as a matter of construction, an irregularity within the meaning of paragraph 38. But either way it comes to the same thing. Mr Laws put various hypothetical cases in support of his argument. Suppose, for example, a notice was delivered in time, but the particulars required under paragraph 16(2) were incomplete? Would that be an irregularity which could be cured under paragraph 38? I suspect that it could. That is the sort of problem which was considered by Simon Brown J in Hamida Begum and Others [1988] Imm AR 199. But I do not attempt to chalk the dividing line. That is an exercise which has been attempted, not always with conspicuous success, in other fields, notably in connection with the meaning of service for the purpose of RSC Order 10. Mr Pannick, wisely, submits that we should confine ourselves to the facts of the present case. Doing so, I have no doubt that paragraph 38 cannot be invoked to cure the defective address, and so enable the Secretary of State to rely on section 7 of the Interpretation Act, or otherwise call for an extension of time. I would therefore reject both branches of Mr Laws' argument and dismiss the application for judicial review. The decision of the Immigration Appeal Tribunal that it had no jurisdiction to hear the Secretary of State's appeal will be upheld. The Adjudicator That means that we have to consider the Secretary of State's alternative application for leave to apply for judicial review of the determination of the adjudicator. It will be remembered that the adjudicator held that all five appellants were entitled to political asylum. He further found as a fact that circumstances had not changed between the date of the relevant decisions and the date of his determination. He concluded: "The appeals having succeeded I do not see that in these cases it is appropriate to do more than direct that each appellant be returned to the United Kingdom with the minimum delay, which I do. In relation to appellants two and three, they are entitled to indefinite leave to remain in the United Kingdom and must receive such leave upon their return." By his grounds of application, the Secretary of State challenges: (1) the validity of the adjudicator's direction in relation to all five appellants on Wednesbury grounds; (2) the direction that appellants two and three are entitled to indefinite leave, and (3) the decision that appellants four and five were entitled to political asylum, on the ground that the adjudicator had no jurisdiction to entertain their appeals. Fortunately, the area of dispute has greatly diminished by very sensible concessions on all sides. It was conceded on behalf of all the appellants that the immigration officer will be entitled to reconsider the case of each returning appellant on his arrival in the United Kingdom, and determine on the merits whether they are entitled to political asylum in the circumstances then prevailing. On that basis, Mr Laws did not pursue his argument that the directions are Wednesbury unreasonable, an argument which may in any event have been advanced because of a misunderstanding as to the scope and intended effect of those directions. So ground (1) above has gone. Mr Blake, on behalf of appellants two and three, concedes that he cannot support the adjudicator's direction that his clients are entitled to indefinite leave on their return. Their case will fall to be considered by the immigration officer like the others. So the very last sentence of the determination quoted above will be quashed. That disposes of ground (2). Ground (3) remains. It relates to appellants four and five, and them alone. The argument has run along the same lines as the argument we heard in Labiche; but on this occasion we have gone into the matter in greater detail. Before I come to the main argument, I should mention a preliminary objection advanced by Mr Pannick on behalf of the adjudicator. He submits that we ought to refuse relief in our discretion, because this is a case where the Secretary of State could, and should, have gone by way of statutory appeal to the Immigration Appeal Tribunal. He relies on the principle stated in R v Secretary of State for the Home Department ex parte Swati [1986] 1 WLR 477, and stated (though not applied) in Calveley v Chief Constable of Merseyside Police [1986] 2 WLR 144. The principle is, of course, well established. I hope nothing I say will be thought to undermine it. The reaon underlying the principle is that of judicial economy. If the appellant is permitted to challenge the decision at first instance, and his application for judicial review fails, there will be nothing to stop him exercising his statutory appeal, and then challenging the appeal decision. Multiplicity of proceedings will result. But here there is no longer any question of an appeal. So I do not see the same necessity for applying the normal rule. Mr Pannick says that applicants should be encouraged by all means to exploit their statutory rights, and that if we allow judicial review in this case, others will be tempted to follow suit. But the incorrect address here was a mistake. No one has suggested, or could suggest, that the Home Office wrongly addressed the envelope on purpose so as to enable it to come to this court. I see no danger in entertaining the present application. I would not refuse the application on discretionary grounds. And so I turn to the substantive argument. The fact which distinguishes appellants four and five from the other appellants is that they both sought entry as visitors before ever they claimed asylum. They were refused leave to enter as visitors and were duly served with removal directions. It was only after they had been served with removal directions that they sought asylum. The other three appellants were never refused leave to enter until they had been refused asylum. The Home Secretary concedes that the other three have an ordinary right of appeal to the adjudicator under section 13 of the Act, in which they can raise the question of asylum. He concedes that appellants four and five have their ordinary right of appeal under section 13 of the Act in relation to their refusal of leave to enter as visitors. But he contends that they have no second right of appeal in relation to the refusal of asylum. The adjudicator rejected the Home Secretary's argument, and went on to consider all five appeals together. The question is whether he was right. The argument on this issue has taken an interesting course. Mr Laws submitted that a refusal of leave to enter means what it says. Suppose an immigrant applies for leave to enter as a student; suppose he is refused leave and is duly served with removal directions. The refusal of leave is an appealable decision under section 13 of the Act. Now suppose that, before he can be removed, he applies for leave to enter as a visitor, and is refused. Does this second refusal generate a second appealable decision? Surely not, submits Mr Laws. The original refusal of leave still stands. Parliament cannot have contemplated a succession of refusals, giving rise to a succession of appealable decisions, whenever the immigrant shifts his ground. In support of his argument Mr Laws points to schedule 2. The structure of that schedule, and in particular paragraphs 16(1) and 16(2), show that an immigrant must either have been refused leave, or not, as the case may be. He cannot be within paragraphs 16(1) and 16(2) at the same time. He must be within one or the other. Once he has been refused leave, he is within paragraph 16(2). He cannot bring himself back within 16(1) by putting forward fresh grounds. Consequently, fresh grounds cannot be regarded as giving rise to a second application for leave to enter, with a second refusal, and a second appealable decision. Otherwise schedule 2 would, quite simply, be unworkable. Of course, if an immigrant departs from our shores, and then returns, his second arrival may give rise to a second refusal of entry. But each arrival can give rise to only one refusal of entry at a time. He cannot be refused entry more than once on each occasion, even notionally. Mr Riza, who appears on behalf of appellants four and five, is conscious of the difficulty of making schedule 2 work in the case of consecutive applications. In particular, he accepts that paragraphs 16(1) and 16(2) are, as it were, mutually exclusive. An immigrant cannot be within both at the same time. So Mr Riza agrees with Mr Laws that schedule 2 cannot apply to a second application. But he draws a different conclusion. The fact that schedule 2 cannot apply, does not mean that a second application may not give rise to a second refusal of leave to enter. He relies for his right of appeal, not on schedule 2, which he admits is inapplicable, but on section 4(1) of the Act. Mr Pannick, on behalf of the adjudicator, also accepts part of Mr Laws' argument, but a different part. He concedes that Parliament cannot have intended that there should be successive appealable decisions as of right. So he accepts that, where an immigrant has already been refused leave to enter, the immigration officer is not obliged to consider a second application on different grounds. But he may do so, if he wishes. If he does, then schedule 2 applies. Where the second application is on asylum grounds, the only difference is that the immigration officer has no option. He is bound to consider the application and treat it as a second application for leave to enter, giving rise to a second appealable decision. The difficulty I feel with Mr Pannick's solution is that it leads to an unsatisfactory distinction between an immigration officer who says, "I will not entertain your fresh grounds", and one who says, "I have considered your fresh grounds, but turn them down". Why should the latter give rise to an appealable decision, if the former does not? Moreover, Mr Pannick does not seek to grapple with the problem raised by paragraphs 16(1) and 16(2) of the schedule. Mr Pannick referred us to section 11 of the Act, which provides that a person arriving in the United Kingdom shall be deemed not to have entered the United Kingdom so long as he has only been temporarily admitted under paragraph 21 of schedule 2. But it does not follow from section 11 that an immigrant can be refused entry more than once on each occasion he arrives. I have equal, perhaps greater, difficulty with Mr Riza's solution, since it leaves a complete vacuum in the case of a second application. He accepts that schedule 2 cannot apply. But he puts nothing in its place. So I am driven to accept Mr Laws' solution. I agree that it, too gives rise to a certain artificiality. But that artificiality arises, as we said in Labiche, from attempting to make the Act work, as we clearly must, in the awkward case of a claim for asylum. It is a mistake to start from the assumption that the refusal of asylum must necessarily, in all cases, give rise to a right of appeal. In many cases it will. It has in the case of appellants one to three. But if Parliament has not created a right of appeal in the case of appellants four and five, we cannot create one for them. On the true construction of the Act, appellants four and five have no right of appeal. It follows that the Secretary of State is entitled to his order of certiorari to quash the adjudicator's decision in their cases. I have not mentioned the authorities. But they are, from the appellants' point of view, at best neutral. In R v Secretary of State for the Home Department ex parte Amarasingham (decided on 12th May 1989), McCowan J said: "In my judgment where there has already been a refusal of leave to enter on a non-asylum ground, as was the situation here, there does not have to be a further refusal of leave to enter if at some later stage an asylum application is refused." In Labiche, I gratefully adopted that statement of the law. But I acknowledge that the judge gave no reasons. In Ashraf, decided on 16 December 1988, the Court of Appeal clearly assumed that a second application could be made and, if so, would be subject to schedule 2. I give weight to that assumption. But, as Mr Pannick accepted, the point was not argued in Ashraf and did not form part of the ratio decidendi. Apart from the authorities, I would, for the reasons already given, allow the Secretary of State's application in the case of appellants four and five. AULD J: For the reasons given by my Lord I would dismiss the application for judicial review of the Immigration Appeal Tribunal's decision that it had no jurisdiction to hear an appeal by the Secretary of State in this matter. As to the Secretary of State's alternative application for leave to apply for judicial review of the determination of the adjudicator, I respectfully agree with my Lord, save in the cases of the fourth and fifth appellants, where I would dismiss the application. My reasons are as follows: The question is whether, a non-British citizen who, on arrival in this country, has been refused leave to enter and who, while still here, makes a further application to enter which is refused, has a right of appeal against the second refusal to an adjudicator under section 13 of the Immigration Act 1971. The starting point must be to determine what is meant in the 1971 Act by entry into the United Kingdom. The Act does not expressly say what entry means. It says what it does not mean. It does not mean arrival. By virtue of sections 3(1)(a), 4(1) and (2)(c) and 11(1) a non-British citizen is deemed not to enter while he remains within the area of immigration control or, if outside it, has been detained, or temporarily admitted or released while liable to detention under the power conferred by schedule 2 to the Act. The effect of the provisions is that he is deemed not to enter until he has been given leave to enter. A person who, on or after arrival, is refused leave to enter, has not, therefore, entered. A person who has not entered, whether he is removed from the United Kingdom under paragraph 8 of schedule 2 or detained under paragraph 16(2) or temporarily admitted under paragraph 21(1), is, therefore, prohibited by section 3(1) from entering unless given leave to do so by an immigration officer under section 4(1). His status as a person who has not entered results from the refusal of leave, not from where he happens to be if and when he makes further application to enter. It is not in dispute that if, after removal from the country following a refusal of leave to enter, a person returns and applies again, a refusal of that second application would be an appealable refusal of leave to enter under section 13(1). Given the meaning of entry in the Act, refusal of which, not of physical admission to the country, is appealable, there is no logical basis for depriving an applicant of that right of appeal because he is still here. The Act does not so provide. The fact that a second application is for asylum does not distinguish it from other applications in this respect save as to the way in which it has to be treated under rule 73 of the immigration rules. A non-British citizen who arrives in this country seeking asylum requires leave to enter under section 3(1)(a) of the Act. By virtue of section 4(1) only an immigration officer can give or refuse that leave, and he is required by section 4(2)(b), (c) and (d) to exercise that power in accordance with schedule 2 to the Act. The fact that a question of asylum arises, whether as an express ground of application for leave to enter or as a result of information given by the applicant, does not take it outside the procedural framework of sections 3(1)(a) and 4(1) and (2)(c) and schedule 2. Rule 73 of the immigration rules is a rule made under section 3(2) of the Act "as to the practice to be followed in the administration of the Act for regulating the entry into and stay in the United Kingdom of persons required . . . to have leave to enter . . ." The effect of the rule is simply to require the immigration officer, as part of his decision-making process, to refer the matter to the Home Office for decision as to whether the applicant is a refugee within that rule. If the Secretary of State decides that he is not, he has no power to refuse leave to enter. That power is reserved to the immigration officer under section 4(1), but, by virtue of paragraph 1(3) of schedule 2, he must exercise it in accordance with the Secretary of State's instructions. It follows that an immigration officer's refusal of leave to enter following and consequent upon a decision by the Secretary of State that the applicant is not a refugee within rule 73 is governed by the notice provision of paragraph 6 of schedule 2 and carries with it all the power of removal, detention and temporary admission without detention in paragraphs 8, 16(2) and 21 of schedule 2, and is appealable under section 13(1). The contrary submission by Mr Riza that applications for leave to enter by refugees are not governed by schedule 2 cannot be correct since section 4(1) and (2)(c) and schedule 2, paragraphs 2(1)(b) and 6(1) are not so qualified. Also, Mr Riza's submission, if correct, would leave applications by refugees for leave to enter without any code, other than the notion of fairness, to govern their treatment by the immigration officer. Once it is accepted that a refusal of an "asylum" application leave to enter is appealable under section 13(1), there is nothing in the Act nor in logic why such a refusal should not be appealable under section 13(1) if it is made while he is still here after a refusal of an application made on another ground. If the applicant, after refusal of an initial application on another ground, left the country and immediately returned and applied to enter as a refugee, a refusal would undoubtedly be appealable. In both cases he is, by virtue of the first refusal, someone who has not entered the United Kingdom making an application to do so. Paragraph 6(3) of schedule 2, which enables an immigration officer, who has refused leave to enter, to change his mind and give leave to enter supports the view that there may be more than one application for leave to enter. In such a case the initial refusal, possibly coupled with release from detention under paragraph 21 of schedule 2, has the effect that the person has not entered. The immigration officer's change of mind may have been prompted by a further application on a new ground or on new facts, perhaps a request for asylum not previously made which the Secretary of State instructs him to grant under paragraph 1(3) of schedule 2. If he has power to grant leave to enter on a second application, he must also have power to refuse it. If it is a refusal of leave, as in this case, it is an exercise by him of his power to give or refuse leave under section 4(1) and is, therefore, appealable under section 13(1). Mr Laws argues that Parliament cannot have intended that, on the strength of one arrival, there could be successive applications for leave to enter, giving successive rights of appeal against refusal. Mr Pannick has attempted to counter that argument by saying that, save for asylum applications where there is a duty to consider them under rule 73 of the immigration rules, an immigration officer is empowered, but not obliged, to consider any further application. In my view, that construction, if adopted, would have the absurd result of making a right of appeal against an immigration officer's decision depend upon whether he chooses to consider it and refuse it, or simply not to consider it. The proper answer to the "floodgates" argument is that further applications can only be made and granted or refused where they are based upon different grounds from the application which has been refused or upon the same grounds but upon any material change of circumstance since that refusal. Immigration officers should be able to weed out quite quickly by examination under paragraph 2 of schedule 2 any spurious applications on different grounds or upon alleged new circumstances made following an initial refusal. Mr Laws also argues that paragraphs 16(1) and 16(2) of schedule 2 are mutually exclusive and that, for that reason, Parliament cannot have intended that the 1971 Act should permit successive applications for leave to enter. Given the clear scheme of sections 3(1), 4(1) and 11(1) of the Act, that argument smacks of the tail wagging the dog. Paragraph 16(1) gives power to detain, inter alios, an applicant for leave to enter. Paragraph 16(2) provides for the detention of a person who has been refused leave to enter. In either case the person liable to detention may be temporarily admitted without being detailed or be released from detention under paragraph 21(1) and subjected to conditions of residence and reporting under paragraph 21(2). But only a person detained under paragraph 16(1) and who has been in the country for 7 days may be given bail by an adjudicator under paragraph 22. Mr Laws argues that if successive applications were permitted there could be an inconsistency in paragraph 16 in that an applicant whose first application had been refused and who had been detained under paragraph 16(2) without right of bail would become subject to paragraph 16(1) while his second application is being considered, with right of bail. In my view, that argument is misconceived for two reasons. First, where an unsuccessful applicant has been detained under paragraph 16(2), an immigration officer does not need to exercise his powers of detention under paragraph 16(1) while he conducts an examination under paragraph 2 of schedule 2 of any further application. The applicant is not entitled to be detained under paragraph 16(1) as soon as he makes a further application. He does not, therefore, necessarily bring himself within paragraph 16(1) by making a further application. Accordingly, he need not become subject to any conflict that there might be between the possibility of being granted bail under paragraph 16(1) but not under paragraph 16(2). Second, an applicant who has been refused leave to enter and detained under paragraph 16(2), and whom an immigration officer on a further application might unnecessarily choose to detain under paragraph 16(1), does not become entitled to release on bail on a successful application under paragraph 22 when he makes a further application, any more than a man committed for trial in custody on one offence becomes entitled to release on bail if committed for trial on bail for another offence. The bail, if granted on the second application, would simply not be operable. The reality is that an adjudicator would not grant it, knowing that the applicant was also a person detained under paragraph 16(2) as one who had been refused leave to enter on his original application and who was subject to removal directions. In any event, the lack of any provision for bail in respect of a person detained under paragraph 16(2) is largely academic. If there is an appeal against the immigration officer's refusal, paragraph 29 gives a chief immigration officer a power to grant bail pending the hearing of the appeal. If there is no appeal, paragraph 21(1) and (2), empower an immigration officer temporarily to admit him without detention or to release him from detention subject to conditions of residence and reporting, just as in the case of a paragraph 16(1) detention. Thus, an applicant who has had one application refused and who has a further one pending may, wearing either hat, be released from detention subject to reporting conditions. Only the legal basis of that release may, not must, be different, and only then if an immigration officer chooses to exercise his power of detention under paragraph 16(1) when he does not need to do so. I appreciate that the view I have taken differs not only from that of my Lord but also from that of McCowan J in the case of Amarasingham, given on 12 May 1989. However, McCowan J did not give reasons for his view that where there has already been one refusal to enter on a non-asylum ground, there does not have to be a further refusal of leave to enter if at some later stage an asylum application is refused. Nor is it apparent from his judgment to what extent the point was argued in front of him. It is notable that in that case it was apparently not contended that the communication direct from the Home Office to the applicant indicating that asylum would not be granted was a notice of refusal of leave to enter under section 4(1) of the Act. Accordingly in the cases of the fourth and fifth appellants I would dismiss this application.

Judgment Two:

LLOYD LJ: The overall effect of that is that the Home Secretary's application for judicial review of the decision of the Immigration Appeal Tribunal is dismissed, but in relation to his application for leave to apply for judicial review of the decision of the Adjudicator, since we are divided the proper course is for me to withdraw my judgment so that will leave the Secretary of State free to go to the Court of Appeal.

DISPOSITION:

Application granted in part

SOLICITORS:

Treasury Solicitors; Winstanley-Burgess

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