IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)
Friday, 3rd April 1998
MR. JUSTICE SEDLEY
REGINA - v - THE IMMIGRATION APPEAL TRIBUNAL SINGARAJA JEYEANTHAN
MR S COX (Instructed by Messrs A. J. Paterson, SW13 9JS) appeared on behalf of the Applicant.
MR. R. JAY (Instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
MR. JUSTICE SEDLEY:
This is an application for judicial review of a decision of the Immigration Appeal Tribunal allowing an appeal of the Secretary of State against a decision of a Special Adjudicator, Professor Counter, in favour of the applicant's asylum claim. The tribunal remitted the case to another Special Adjudicator for rehearing.
The grounds of the application are (a) that the Secretary of State's notice of application for leave to appeal to the Immigration Appeal Tribunal was a nullity, and (b) that the Immigration Appeal Tribunal's reasoning in coming to its conclusion was illegally deficient.
For the Secretary of State, Mr. Robert Jay concedes that the second ground of challenge is well founded. He accepts that if the Immigration Appeal Tribunal is to overturn a Special Adjudicator on questions of fact and credibility, nothing less than a finding of perversity will do, and that here there was enough material to found the Special Adjudicator's decision without any perversity on his part. Mr. Jay accepts too that the standard of proof adopted by the Special Adjudicator, a second topic of criticism by the tribunal, was if anything higher against the applicant than the law required.
In these respects and quite possibly in others which would but for the concession have been argued by Mr. Cox on the applicant's behalf the Immigration Appeal Tribunal's decision to overset the Special Adjudicator's findings of fact and to criticise him for erring in law is unsustainable. I would add for my part that the decision of the Immigration Appeal Tribunal gives every appearance of haste in its preparation, reducing one's initial confidence in its quality, and that reading it in detail tends to increase the doubts.
To allow the challenge on this ground alone would, however, result only in a remission to the Immigration Appeal Tribunal for a fresh hearing. Mr. Cox, therefore, as he is perfectly entitled to do, presses his first ground. This arises out a peculiar situation which appears to be of the making not of the Home Office but of the Lord Chancellor's Department.
Leave to appeal from a special adjudicator to the Immigration Appeal Tribunal must be made in a prescribed form, form A2, or in a form "substantially to the like effect...with such variations as the circumstances may require" (Asylum Appeals (Procedure) Rules 1993 and 1996, rule 13(3); Immigration Appeals (Procedure) Rules 1984, rule 35.) Form A2 is divided into five parts. Part 1 includes space for the applicant's family and given names, address, date of birth, nationality or citizenship and previous appellate history. Part 2 seeks information about any appointed representative. In Part 3 the grounds of appeal are to be set out. Part 4 is a declaration. At the material time, it was covered by a rubric which read: "You, not the person helping you, should sign this form". The declaration itself read:
"I declare that the information I have given is true and complete to the best of my knowledge and belief."
Then on the right-hand side, level with that declaration, appeared the words:
"I appeal for leave to appeal to the Immigration Appeal Tribunal against the Special Adjudicator's decision".
It is manifest that there is one "appeal" too many in that sentence and that the first verb should be "apply" and not "appeal". The solecism was not corrected when the form as represcribed in 1996. In its present form, it omits the rubric but again says:
"I declare that the information I have given is true and complete to the best of my knowledge and belief.
I appeal for leave to appeal to the Immigration Appeal Tribunal against the Special Adjudicator's decision."
It can, however, be signed by either the applicant or the applicant's representative.
Form A2 is initially served on the IAT only, but if leave is given it is served on the other party with notice of the grant of leave. In the present case, the Home Office, as it sometimes does, did not attempt to use the form but sent a letter. Mr. Cox accepts that its content follows that of the prescribed form save that, as Mr. Jay accepts, it omits the Part 4 declaration. The question is whether, either generally or in this particular case, the omission renders the application and hence the grant of leave invalid.
The first thing that needs to be said is that form A2 is drafted on the assumption that the applicant for leave will always be the asylum seeker. Part 1 is wholly inapt for the Secretary of State or, for that matter, for the United Nations High Commissioner for Refugees who also has standing in asylum cases.
The history of this oddity is described in the affidavit of Kim Maria Head of the Home Office Asylum and Appeals Policy Directorate. She explains that the procedure rules are the responsibility of the Lord Chancellor's Department but that the anomaly under the 1993 rules, which first introduced a requirement of formality and which applied in the same terms as I have cited above to the present case, was perpetuated in the 1996 Procedure Rules. Since, however, the "like effect" provision applied, the Home Office, without objection from the Lord Chancellor's Department, redesigned form A2 so as to make it apt for its own use as an appellant. She exhibits a copy. It omits Part 1, but it contains the full declaration from the prescribed form to be signed by a member of the Asylum Directorate on behalf of the Secretary of State.
This is of course not conclusive but it certainly does not assist Mr. Jay's submission that the declaration may be omitted without depriving the form of substantially the like effect to that which is prescribed. He puts his case in two alternative ways. First, he founds on the decision of Latham J. in the case of Nichalapillai (unreported, 30th January 1998). At pages 10 to 11 of that judgment, Latham J. said:
"As far as Part 4 (the declaration) is concerned, it is clear that the declaration is intended to ensure that the Applicant in the given case has applied his mind to the correctness of the material which is set out, which, essentially, relates to his name and the personal information that he has given, also in relation to the question of whether or not he has appealed in any previous immigration case, and also the accuracy of his assertions as to the representative or person helping him. It seems to me, in those circumstances, as far as Part 4 is concerned, that is a part in the form which is not of any materiality where the Secretary of State is appealing. Part 5 identifies what documents have to be submitted, but does not seem to me to carry the substance of the document forward any further in the sense that it adds a material feature to the document. It simply ensures that an Applicant provides the Immigration Appeal Tribunal with the documentation which the Immigration Appeal Tribunal needs to have in order to deal with the application for leave. Clearly, in the present case, the Immigration Appeal Tribunal did indeed have such documentation because it felt able to deal with the application on 7th March 1996. The question, therefore, for consideration is whether, in those circumstances, despite the fact that it departs in every respect except for the fact that it identifies the Appellant and provides the proposed grounds of appeal, it can nonetheless be properly described as a form 'substantially to the like effect' as Form A2.
"In my judgment, although I have to confess that I did not find it the easiest decision to reach in this case, the form does just fall within that particular phrase. It provides the relevant and necessary material upon which the Immigration Appeal Tribunal can identify the Appellant, identify the grounds and know to whom any decision has to be sent".
If, however, I am persuaded not to follow Latham J., whether in principle or on the present facts, then Mr. Jay submits that the only thing in Part 3 to which the declaration could relate is "Why you think the special adjudicator's decision was wrong"; and by signing the letter, the Secretary of State's representative authenticates this as effectively as does the declaration. The declaration is analogous, he suggests, to counsel's signature on a pleading, as is the Secretary of State's signature on a letter. Both are therefore substantially to the like effect.
Mr. Cox mounts a convincing assault on this position. First, as Mr. Jay himself has very properly pointed out, appeal to the IAT has, since 1993, lain on fact as well as on law. A form A2 notice may well include assertions of fact in Part 3, especially where fresh evidence is relied on. In the present case, the Secretary of State himself has made assertions of fact in his grounds:
"...since the latter half of 1995, the Sri Lankan army has advanced into and regained control of the northern region of the country. The military offensives carried out by the security forces have not resulted in any decline of human rights standards achieved by the Sri Lankan Government and there are signs that normality is being restored to that part of the country."
Mr. Cox invites me not to follow Latham J.'s decision in Nichalapillai. It might well be possible to distinguish that decision on the ground that in the present case the Secretary of State has advanced assertions of fact which the form requires to be verified by declaration; and if necessary I would so decide. But Latham J. was not shown two authorities which are in point.
In Mountain v. Hastings  25 H.L.R. 427, the issue before the court concerned a claim for possession of a dwelling house. There were prescribed forms. Paragraph 3 of the material form read:
"'The landlord intends to seek possession on grounds ... in Schedule 2 to the Housing Act 1988, which reads:
Give the full text of each ground which is being relied on. (Continue on a separate sheet if necessary)."
"By regulation 2 of the 1988 Regulations:
"'...any reference to a numbered form is a reference to the form bearing that number in the Schedule to these regulations or to a form substantially to the same effect'."
In the Court of Appeal, giving the leading judgment, Ralph Gibson L.J. said at page 434:
"The regulation, however, expressly permits the notice to be effective in the prescribed form if it is 'substantially to the same effect', which I take to mean to be showing no difference in substance having regard to the legislative purpose of the provisions as a whole. I, therefore, am not persuaded that there is a statutory requirement that the ground be set out verbatim from the schedule. I am troubled by the risk that if the tenant is faced with the seven words which effectively set out the substance of a ground but in markedly different words, the tenant may, if he has access to the words in schedule 2, be puzzled and troubled by the difference. There is something to be said in favour in the use of the words in which the ground was enacted by Parliament. I do not decide this point, however, because the case can be, and I think should be, decided on the ground that the plaintiff's notice was not 'substantially to the same effect' as that required by the Act and regulations."
In Tegerdine v. Brooks  36 P&CR 261, a decision which was before the Court of Appeal in the case from which I have just cited, a notice given under s.24 of the Landlord and Tenant Act 1954 had omitted certain prescribed notes. In the Court of Appeal at page 266 of the report, Cairns L.J., giving the leading judgment, said:
"It is immaterial whether the tenant has been misled. It is, however, in my opinion, relevant whether the departure from the form prescribed is such as to be immaterial to the whole of the facts of the case, and if it is, in my view, such departure is not one which shall render the notice a notice which does not substantially conform with the regulations."
An indicator of the importance attached by law to the substance of prescribed forms without regard to the effect of a departure in any one case is the decision of the House of Lords, albeit not referred to in argument by counsel, in London & Clydeside Estates v. Aberdeen District Council  1 W.L.R. 182 where the omission of prescribed information about appeal rights on a planning certificate was held to render the notice void regardless of when the recipient had been misled.
It may well be that, had he been shown the authorities deployed by Mr. Cox before me, Latham J.'s decision -- one which he expressly said he found difficult -- would have gone the other way. For the reasons I have set out, it cannot be said that the declaration on form A2 is immaterial, either to the present case where assertions of fact were made by the Secretary of State in the notice, or generally. It is there for a purpose, and the purpose is just as relevant when the proposed appellant is the Home Secretary or the United Nations High Commissioner for Refugees as when it is an asylum seeker.
The principle of equality before the law is jeopardised if the state as appellant is placed or is allowed to place itself in a materially different position from any other appellant. The declaration does not create for an appellant any legal liability which he or she would not anyway have, but it demonstrates and is intended to demonstrate that the appellant appreciates the seriousness of the step that is being taken and the obligation of honesty and accuracy that it carries with it. In my view, it is as important that an asylum seeker respondent should know of this as that the Secretary of State (who is more usually the respondent) should do so; and in both cases equally that the Immigration Appeal Tribunal should do so.
Mr. Jay has been careful to seek no privilege or special status for the Secretary of State in this respect, and he was right to take this course. Once this point is passed, the lesser grounds of distinction are not sustainable. With diffidence and with respect, therefore, I do not propose to follow the decision of Latham J. in Nichalapillai. Certiorari will go to quash the decision of the Immigration Appeal Tribunal of 25th November 1996.
For the avoidance of doubt, since the two grounds advanced have different consequences, I will declare that no valid application for leave was before the Immigration Appeal Tribunal, with the result that the Special Adjudicator's decision in the present applicant's favour is now beyond challenge.
I wish to add this. The Secretary of State's evidence stresses that for his part he does not generally take points of form against asylum seekers who apply for leave to appeal. This is a generous and commendable practice and I would not want anything in this judgment to cause a change in it. But if a point of formality is taken and is well founded, the court cannot overlook it and the IAT itself may need to be alive to the possibility that sufficient informality may invalidate a notice, whoever gives it.
MR. COX: My Lord, I am legally aided. I ought to tell your Lordship that there is a small lacuna in the certificate and that it does not extend to the hearing itself before your Lordship.
MR. JUSTICE SEDLEY:
Just as well you have won, then, Mr. Cox.
My Lord, I do I ask for my costs against the Secretary of State.
MR. JUSTICE SEDLEY:
With that plea ad misericordiam, Mr. Jay, can you resist?
MR. JAY: My Lord, the Secretary of State will need time to consider your Lordship's judgment. Your Lordship is departing from the decision of Mr. Justice Latham. I am instructed therefore to ask for leave to appeal.
MR. JUSTICE SEDLEY:
Yes, I think you should have it, unless Mr. Cox has some compelling reason why you should not.
Not a compelling reason, my Lord.
MR. JUSTICE SEDLEY:
No. You may have leave to appeal, Mr. Jay. Mr. Cox, you may have a legal aid taxation, for what it is worth. Again, thank you both very much for your interesting and well-presented arguments.
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