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IN
THE SUPREME COURT OF JUDICATURE
IATRF
1999/0468/4
IN
THE COURT OF APPEAL (CIVIL DIVISION)
ON
APPEAL FROM IMMIGRATION APPEAL TRIBUNAL
(MR
J. A. O'BRIEN QUINN QC - VICE PRESIDENT
)
Royal
Courts of Justice
Strand
London
WC2
Friday,
20 August 1999
B
e f o r e:
LORD
JUSTICE PETER GIBSON
LORD
JUSTICE LAWS
LORD
JUSTICE SEDLEY
-
- - - - -
FALILAT
AKEWUSHOLA
Appellant
-
v -
IMMIGRATION
OFFICER, HEATHROW
Respondent
-
- - - - -
(Handed
Down Judgment of
Smith
Bernal Reporting Limited, 180 Fleet Street,
London
EC4A 2HD
Tel:
0171 831 3183
Official
Shorthand Writers to the Court)
-
- - - - -
MR
A RIZA QC & MR A KAIHIVA
(Instructed by Messrs Tayo Arowojolu, London, E1 4TR) appeared on behalf of the
Appellant
MR
A MCCULLOUGH
(Instructed by The Treasury Solicitor, Queen Anne's Chambers, 28 Broadway,
London, SW1H 9JS) appeared on behalf of the Respondent
-
- - - - -
J
U D G M E N T
(As
approved by the Court
)
-
- - - - -
LORD
JUSTICE SEDLEY:
History
The
appellant is a young woman born, according to the birth certificate which she
has produced, in the United Kingdom on the 4
th
January 1976. On the 12
th
April 1977 a United Kingdom passport was issued to a child of her name and age.
It expired five years later. Ten years after that the appellant applied to the
British High Commission in Lagos for a new passport, which was refused because
of doubt about her entitlement to it.
In
January 1995 the appellant presented herself at a United Kingdom port of entry
with a current Nigerian passport and the expired United Kingdom passport.
After prolonged consideration, on the 24
th
June 1995, an Immigration Officer refused her leave to enter on the ground that
the UK passport did not describe her and that, for the rest, she had no entry
clearance. She was, however, granted temporary admission pursuant, presumably,
to Schedule 2, paragraph 21(1), to the Immigration Act 1971.
The
appellant appealed to an Adjudicator, Mrs. H.S. Coleman, who by a decision
dated the 12
th
June 1997 rejected her appeal. By common consent the appeal was conducted not
on the question whether the passport referred to the appellant but on the
question whether it was a United Kingdom passport within the meaning of the
legislation. I will come in a moment to the significance of this, but it is
first necessary to recount the rest of the procedural history.
The
appellant, who was represented, was granted leave to appeal to the Immigration
Appeal Tribunal. It sat on the 26
th
January 1998, with a Vice-President, Mr. O’Brien Quinn QC, in the chair.
By now the appellant was pregnant and the hearing date happened to be her
expected date of confinement. Her representatives applied for an adjournment
of the hearing, but because of an administrative error the Tribunal was not
made aware of this. No representative attended on her behalf, even though no
adjournment had yet been granted. The Tribunal, as it was entitled to do,
proceeded in her and their absence. In a determination given on the 23
rd
February 1998 it upheld the decision of the Adjudicator.
Some
time afterwards it came to the IAT’s notice that the adjournment
application had been entirely overlooked. Accordingly the Chairman of the
Tribunal which had sat in January, Mr. Quinn, purported to rescind his own
Tribunal’s determination on the ground that it would in all probability
have granted the adjournment had the application been placed before it. He
directed a fresh hearing before a differently constituted Tribunal.
The
new Tribunal, chaired by the President, His Honour Judge Pearl, sat on the 17
th
August 1998. It took as a preliminary point the question whether Mr.
O’Brien Quinn had had any power to rescind his own Tribunal’s
decision and order a fresh hearing. Without needing to address the question
whether a full Tribunal possessed the power, it concluded that a chairman
sitting alone certainly did not, and accordingly declared Mr. O’Brien
Quinn’s rescinding order a nullity.
On
the 27
th
April 1999 Lord Justice Buxton enlarged the time for appealing and gave
permission to appeal against both decisions of the Immigration Appeal Tribunal:
that of the 23
rd
February 1998 (“the Quinn decision”) and that of the 4
th
September 1998 (“the Pearl decision”).
Issues
The
case as presented by Mr. Alper Riza QC for the appellant and Mr. Angus
McCullough for the respondent Secretary of State raises two distinct questions:
(i) Is
the right of appeal in a case such as the present limited to the preliminary
issue of proving the production of a current United Kingdom passport describing
the bearer as a British citizen having the right of abode in the United
Kingdom, or does it entitle the appellant to prove her right of abode by any
admissible means?
(ii) What
power, if any, does a chairman or a full tribunal possess to rescind a
determination once given?
The
passport question
Since
the passage of the Immigration Act 1971 a number of complexities have been
removed from the law governing admission as of right at ports of entry. The
present provision is to be found in section 3(9) as amended by the Immigration
Act 1988:
"A
person seeking to enter the United Kingdom and claiming to have the right of
abode there shall prove that he has that right by means of either –
(a) a
United Kingdom passport describing him as a British citizen or as a citizen of
the United Kingdom and Colonies having the right of abode in the United
Kingdom; or
(b) a
certificate of entitlement issued by or on behalf of the Government of the
United Kingdom certifying that he has such a right of abode."
A
United Kingdom passport is defined by section 33 of the Act, “except in
so far as the context otherwise requires”, as meaning:
"a
current passport issued by the Government of the United Kingdom ..."
Since
the appellant’s United Kingdom passport was not current, it did not on
the face of it rank as a passport for the purpose of proving the right of abode
under section 3(9). The passport being the prescribed means by which the
appellant was seeking entry as of right, the Immigration Officer will have had
no option but to refuse her entry.
Mr.
Riza offers two objections to this reasoning. The first is that the context
in which the phrase “United Kingdom passport” is used in section
3(9) requires it to be given a meaning which differs from that set out in
section 33(1) by omitting the requirement that it be a current passport. The
second is that the appeal afforded by section 13 of the Act can have reality
only if it is open to the applicant to prove her right of abode otherwise than
as prescribed in section 3(9). If the second proposition is right, the first
is unnecessary; if it is wrong, there is no conceivable ground for disapplying
the section 33(1) definition. I turn therefore directly to the second
proposition.
"(1)
Subject
to the provisions of this Part of this Act, a person who is refused leave to
enter the United Kingdom under this Act may appeal to an adjudicator against
the decision that he requires leave or against the refusal.
.....................
(3) A
person shall not be entitled to appeal, on the ground that he has a right of
abode in the United Kingdom, against a decision that he requires leave to enter
the United Kingdom unless he holds such a passport or certificate as is
mentioned in section 3(9) above ............."
If,
Mr. Riza submits, the right of appeal is limited to a section 3(9) passport or
certificate holder, and if in addition a passport is limited to a current
passport, the right of appeal given by section 13(3) is illusory: the holder
of a current passport will enter as of right, with no need of an appeal, and
nobody else will have a right of appeal.
But
at least two classes of potential issue can be discerned in the words “a
[current] United Kingdom passport describing him as a British citizen having
the right of abode in the United Kingdom”. A question may arise whether
the document, though apparently current, is a forgery. Or a question may arise
whether the person seeking to enter is the person described in an undoubtedly
genuine and current passport. These might legitimately have been treated as
grounds of appeal within section 13(3); but the Immigration Appeals
(Procedure) Rules 1984, made by the Lord Chancellor under the powers conferred
by section 22 of the 1971 Act, by Rule 8(3) provide:
"Where
the respondent to an appeal alleges that -
(a)
the appellant is not entitled to appeal
........
(ii) by
reason that a passport .... on which the appellant relies is a forgery or was
issued to, and relates to, a person other than the appellant
.......
the
written statement referred to in paragraph (1) above [the Home Office statement
of facts] shall include that allegation but it shall not be necessary for the
respondent to include in the statement facts which are not relevant to the
allegation. "
Rule
11(1), captioned “Determination of preliminary issues”, provides:
“Where
the respondent to an appeal makes such an allegation as is mentioned in Rule
8(3), the appellant authority may, and at the request of the respondent shall,
determine the validity of the allegation as a preliminary issue."
The
intention, it appears, is to maintain the integrity of the process prescribed
by section 3(9) for proving entitlement to enter the United Kingdom. It may be
that it was not necessary to do so, since section 22(4) explicitly recognises
the possibility of an appeal on the question whether a passport is forged. But
the effect of Rules 8(3) and 11(1) is not to exclude issues of forgery or
impersonation from the appeals system: it is to treat them as preliminary
issues, with the consequence that if they are determined in the
applicant’s favour the appeal will ordinarily succeed without more.
The
present case was not argued as a case of forgery or impersonation. It
nevertheless went before an Adjudicator, rightly, on the contention that the
section 33(1) definition of a United Kingdom passport was not applicable to
section 3(9) or therefore to section 13(3). The point, having gone against the
applicant, was considered sufficiently substantial to merit the grant of leave
to appeal. If an issue of fact arose as to whether a passport was current,
this too would be an appealable question. All of this illustrates, as Mr.
McCullough submits, that section 13(3) is not without content, and that Rules
8(3) and 11(1) do not starve it of content.
Mr.
Riza makes the worthwhile point that the right of abode is too important a
right to be without a remedy, so that an appeal confined to proof of documents
rather than to proof of the facts underlying the necessary documents is
inadequate. For my part I agree with his premise but not with his conclusion.
The responsibility of the executive for issuing passports or certificates of
entitlement, whether at home or abroad, is subject to the supervisory
jurisdiction of the High Court. Such documents cannot be unlawfully or
arbitrarily refused to a person who is entitled to them. It is here that Mr.
Riza’s remedy can if necessary be found, together perhaps with the power
to grant temporary admission – such as was granted to the applicant in
the present case – so that curable deficiencies in the necessary
documentation (for example a recently expired United Kingdom passport) can be
put right. There is and can be no suggestion that different standards may be
applied depending on the ethnicity or appearance of the intending entrant. The
Secretary of State, through Mr. McCullough, readily accepts this. As to his
further submission that a person whose passport has expired can be “waved
through” in the exercise of some extra-statutory dispensing power, I
prefer to make no comment whatever. The issue is too large, and the proper way
of proceeding too evident, to justify further discussion.
In
these circumstances there is in my judgment no contextual reason for
disapplying the definition of a United Kingdom passport set out in section
33(1). In the present case Ms. Akewushola, lacking a current United Kingdom
passport, did not have the required means of proof of a right of abode. The
only evidence required for the appeal was the expired passport itself, and both
the Adjudicator and the Quinn Tribunal were correct in holding that it failed
to meet the requirements of the Act.
I
would therefore dismiss the appeal against the determination of the Immigration
Appeal Tribunal given on the 23
rd
February 1998 on the preliminary issue.
The
procedure question
Although,
as Mr. Riza came to acknowledge, a critique of what followed the Quinn
Tribunal’s decision cannot now help him if that decision was right, we
have heard argument from both sides upon it since our view may be of assistance
to the Immigration Appellate Authority in the future.
The
Pearl Tribunal decided that it had no jurisdiction on the narrow ground that
Mr. Quinn sitting alone had no power to undo his own Tribunal’s decision.
This was plainly right. The powers of chairmen are exhaustively spelt out in
Rule 42 of the Immigration Appeals (Procedure) Rules 1984. They relate to
stays on removal pending appeal; bail; leave to appeal; and
"(c) any
function conferred on the Tribunal to
(i) determine
a preliminary issue, or to make a determination in consequence thereof,
pursuant to Rule 11 above;
(ii) remit
an appeal to an Adjudicator pursuant to Rule 21(1) above; or
(iii) require
the attendance of witnesses at the hearing of an appeal, pursuant to Rule 27
above."
Even
though paragraph (c)(i) would have enabled Mr. O’Brien Quinn to decide
the appeal from the Adjudicator by himself (something which, though apparently
lawful, I would for my part not have thought desirable), the Rule gives a
chairman no power in any circumstances to rescind a decision of his own or
another Tribunal.
But
there is a larger issue: can even a full Tribunal rescind its own or another
Tribunal’s decision? I can find no explicit power to do so in the Rules,
and I see a number of reasons why no such power should be inferred or implied.
Rule
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."
The
limit in point of time of this power to cure irregularities is thus the point
at which a decision is reached. From then on the maximum power must be to
correct accidental errors which do not substantively affect the rights of the
parties or the decision arrived at. Mr. Riza has drawn our attention to a
passage at page 262 of the current (7
th)
edition of Wade and Forsyth on Administrative Law. Having instanced cases
where powers of review are expressly conferred on administrative tribunals, the
authors say:
"Even
when such powers are not conferred, it is possible that statutory tribunals
would have power, as has the High Court, to correct accidental mistakes; to
set aside judgments obtained by fraud; and to review a decision where facts
subsequently discovered have revealed a miscarriage of justice."
The
footnote to this sentence cites the slip rule (Order 20 Rule 11 of the Rules of
the Supreme Court 1965) and the decision of the Privy Council in
Hip
Foong Hong v. H. Neotia and Co.
[1918] AC 888, a case concerning the power of His Britannic Majesty’s
Supreme Court for China, sitting at Shanghai, to order a new trial for the
admission of fresh evidence in a dispute between two firms of opium merchants
encountering difficulties with China’s attempts to ban importation of the
drug. For my part I do not think that, slips apart, a statutory tribunal
– in contrast to a superior court - ordinarily possesses any inherent
power to rescind or review its own decisions. Except where the High
Court’s jurisdiction is unequivocally excluded by privative legislation,
it is there that the power of correction resides.
This
is particularly so where, as is the case with the Immigration Appeals
(Procedure) Rules 1984, repeated provision is made for the circumstances in
which a tribunal can decide for itself what steps to take. Rule 28 sets
minimum standards for the conduct of proceedings and gives the appellate
authority, for the rest, express power to “conduct the proceedings in
such manner as it considers appropriate in the circumstances”. Rule
34(2) and (3) lay down specific provisions for conducting a hearing in the
absence of a party. Rule 37, captioned “Miscellaneous powers”,
gives an appellate authority powers to postpone, give directions, adjudicate by
consent, adjourn and “subject to the provisions of the Act and these
Rules, regulate its own procedure”. Although there may be further powers
which arise by necessary implication from those spelt out in the Rules –
for example, to make provision for interpreters – it is not feasible to
deduce from them the interstitial existence of an internal power of rescission
or review. If something has gone procedurally wrong which is capable of having
affected the outcome, it is to the High Court – if necessary on a
consensual application – that recourse must be had.
I
say “which is capable of having affected to the outcome” because it
is strongly arguable, although not necessary to decide, that in the present
case an application to the High Court at the point at which Mr. O’Brien
Quinn purported to set aside his Tribunal’s decision would not have
succeeded. First, no response having been received to the application for an
adjournment, there was on the face of it no reason why the applicant’s
representatives should not have attended the hearing. Secondly, had they done
so, there would have been no need for the applicant to attend, since the facts
were straightforward and undisputed and the issue purely one of law. Mr.
O’Brien Quinn took a different view of what his Tribunal would probably
have done had it appreciated the situation; but the difference is now history.
It
follows logically that the Pearl Tribunal had no more power to declare Mr.
O’Brien Quinn’s decision a nullity than Mr. O’Brien Quinn (or
for that matter the Quinn Tribunal) had to rescind the original decision. But
nothing now turns on this. In any case, the Pearl Tribunal, assembled to
conduct a purported de novo hearing, had to do something about the situation
with which it was presented. Without embarking on the troubled question
whether a purported decision plainly made without power can be ignored, or must
first be quashed by the High Court, it is sufficient to say that the Pearl
Tribunal was right in the event, both for the reason it gave and for the larger
reason which I have given, to regard itself as without jurisdiction. This is
so even if its purported declaration that Mr. O’Brien Quinn’s
decision was void itself had no visible means of support in law.
I
would therefore dismiss the appeal on this issue too.
LORD
JUSTICE LAWS:
I
agree.
LORD
JUSTICE PETER GIBSON:
I
also agree.
Order: Appeal
be dismissed with costs unless the certificate of legal aid is lodged with the
court by 4pm on Monday, 23 August 1999 and, contingent on that, legal aid
taxation of the appellant's costs; application for permission to appeal to the
House of Lords refused. (
This
order does not form part of the approved judgment
)
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