R v. Secretary of State for the Home Department, Ex parte Nganga Kondo

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte NGANGA KONDO

Queen's Bench Division

[1992] Imm AR 326

Hearing Date: 25 February 1992

25 February 1992

Index Terms:

Refusal of leave to enter -- notice of refusal not signed -- whether it was mandatory for such a notice to be signed by the immigration officer who took the decision -- notice not accompanied by information on rights of appeal -- whether in consequence the notice was a nullity -- whether the applicant had secured limited leave by operation of law. Immigration Act 1971 (as amended) ss 4, 18(2) sch 2 para 6: Immigration Appeals (Notices) Regulations 1984 r 4.

Held:

The applicant, on arrival in the United Kingdom had applied for political asylum. He had been detained while his application was considered. The Secretary of State had concluded that the applicant had no claim to asylum. The immigration officer accordingly refused him leave to enter. The notice of refusal was not dated, nor was it signed. On application for judicial review, it was contended by counsel, relying on section 18(2) of the 1971 Act, that it was mandatory for such a notice to be signed by the immigration officer who had taken the decision. As issued, the notice was defective and a nullity. In consequence counsel argued, the applicant had secured limited leave to enter, pursuant to schedule 2, paragraph 6, of the Act (as amended). Held 1. There was no mandatory requirement that such a notice be signed, albeit it might be desirable for that to be done. 2. Section 18(2) of the Act could not bear the construction that counsel sought to put on it. 3. The notice was not a nullity because of the lack of a signature and the lack of a notice of rights of appeal. It followed that notice of refusal of leave to enter had been given in time, and the applicant had not secured limited leave to enter. 4. The applicant had suffered no prejudice through the notice being issued as it had been, and in its discretion, the court would not grant the application.

Cases referred to in the Judgment:

No cases are referred to in the judgment

Counsel:

S Gill for the applicant; M Shaw for the respondent PANEL: Potts J

Judgment One:

POTTS J: This is an application for leave to apply for judicial review of a decision by an immigration officer at Heathrow dated 15 October 1991, whereby the applicant was refused leave to enter the United Kingdom. The applicant arrived in the United Kingdom on 1 October, 1990 and claimed political asylum. He was detained in custody whilst his application was considered. On 15 October 1991 he was refused leave to enter the United Kingdom. The notice of refusal of leave to enter was not signed or dated, and did not state the address to which any notice of appeal against the decision should be sent. By an affidavit dated 18 December 1991 Mr Ghelani, solicitor for the applicant, stated: "I understand that an immigration official purported to hand the notice of refusal to Mr Kondo but he indicated that it should be given to his solicitors. Thereafter, on the same day, the immigration officials sent to our offices by fax a copy of what they had attempted to hand to Mr Kondo. There is now produced and shown to me marked 'SG1' a copy of the same." The notice is to be found at page 13 of the applicant's bundle. It is conceded by Mr Gill on behalf of the applicant that no prejudice has accrued to the applicant in consequence of the defects in the notice complained of. By paragraph seven of the grounds in support of the application, the applicant contends: "Section 18(2) clearly contemplates that the notice of refusal has to be signed by the immigration officer who takes the decision to refuse leave to enter. In the circumstances the notice of refusal is invalid and the applicant is deemed to have been given six months leave to enter by virtue of paragraph 6 of part 1 to schedule 2 of the Act (as amended) . . .", and that paragraph is set out. In addition to complaining that the notice was unsigned, the applicant originally complained that the notice was undated and did not contain the address to which any notice of appeal against the decision should be sent. It is pertinent to state that the notice which is in standard form is headed, "HM Immigration Office" (printed), and then in manuscript appears the word "Terminus 3" and a telephone number. Mr Gill today has not sought to argue that the absence of a full address on the notice and the absence of a date on the notice in any way supports the contentions that he makes that the notice of refusal is invalid. His attack is directed at the absence of a signature. He has referred me to sections 4 and 18 of the Immigration Act as well as to the Immigration Appeal (Notices) Regulations. Section 18(2) of the Act in particular is relied on. It reads: "For the purposes of any proceedings under this Part of this Act a statement included in a notice in pursuance of regulations under this section shall be conclusive of the person by whom and of the ground on which any decision or action was taken." Mr Gill submits that the words "shall be conclusive of the person by whom . . . any decision or action was taken" clearly contemplate that the identity of the decision maker must be specified in the statement included in a notice made in pursuance of the regulations. He submits that if the identity of the decision maker is not specified, then the notice is a nullity and without effect. The word "invalid" in paragraph seven of the grounds has to be read and understood, Mr Gill submits, in this sense. If the identity of the decision maker is not specified, then, it is submitted, a number of mischiefs arise. First, the decision maker is of necessity a party to any appeal made by the recipient of the notice to an adjudicator. (I interpose to point out that section 18 of the Act is headed "Notice of matters in respect of which there are rights of appeal"). The section is clearly directed at the appeals procedure and the rights of appeal of a person wishing to enter the United Kingdom. Mr Gill submits that if the identity of the immigration officer is not stated on a notice, then the applicant has no means of knowing the name of the respondent in any proceedings the party wishing to enter may wish to bring. It is submitted, secondly, that a respondent to any appeal may be required to provide an explanatory statement. This cannot be done if the notice is unsigned. Thirdly, it is submitted that it may be necessary on an appeal to an adjudicator to call a decision maker as a witness. Fourthly, it is submitted that it is necessary to know whether the decision maker had authority to make the decision in question and thus the identity of that person and his or her rank is required. Fifthly, it is submitted that the identity of the final decision maker must clearly be stated in the notice, since it may be necessary to ascertain the material the decision maker took into account in arriving at his or her decision. Mr Gill's submission is that on a true construction of section 18(2) of the Act and of the scheme of the legislation and the regulations made thereunder, there is clear implication that the identity of the decision maker must be specified in the notice, and, he submits, failing that, the notice has no effect. I am unable to accept Mr Gill's submission. I have reached the conclusion that there is nothing in the Act or the regulations relevant to this application, which requires the notice of refusal of leave to enter to be signed or which requires the identity of the immigration officer taking the decision to be specified. The notice in question made it plain that the decision was taken by an "immigration officer". Whilst it is obviously desirable that documents of this sort are signed and the identity of the immigration officer is made clear to the recipient of the notice, I am unable to accept Mr Gill's submission that this requirement is mandatory by statute or regulation, and that the notice given to the applicant in the present case is invalid, in the sense of being a nullity. In my judgment section 18(2) of the Immigration Act 1971, the subsection on which Mr Gill bases his argument, is directed at the proceedings before the adjudicator. It does not bear the interpretation Mr Gill seeks to draw from it, namely, that of imposing a fundamental and mandatory duty on the immigration officer to sign the notice of refusal of leave to enter or otherwise make his or her personal identity clear on that document. This is enough to dispose of this application. In reaching the conclusion that I have, I am fortified by the fact that each of the mischiefs to which I was referred by Mr Gill could have been cured by a simple request to the immigration authorities asking for the name of the immigration officer who took the decision and was responsible for the notice. In any event, and given that no prejudice accrued to the applicant, I have reached the conclusion that it would not have been appropriate to grant the declaratory relief sought by this applicant in the exercise of the discretion which I have when considering applications of this sort. The application is accordingly refused.

DISPOSITION:

Application dismissed

SOLICITORS:

Jane Coker & Co, London N17; Treasury Solicitors

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