R v. Immigration Appeal Tribunal, Ex parte Kamdiah and Anr
| Publisher | United Kingdom: High Court (England and Wales) |
| Author | High Court (Queen's Bench Division) |
| Publication Date | 9 May 1991 |
| Citation / Document Symbol | [1991] Imm AR 431 |
| Cite as | R v. Immigration Appeal Tribunal, Ex parte Kamdiah and Anr, [1991] Imm AR 431, United Kingdom: High Court (England and Wales), 9 May 1991, available at: http://www.refworld.org/cases,GBR_HC_QB,3ae6b68b18.html [accessed 25 June 2017] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
R v IMMIGRATION APPEAL TRIBUNAL ex parte KANDIAH AND ANR
Queen's Bench Division
[1991] Imm AR 431
Hearing Date: 9 May 1991
9 May 1991
Index Terms:
Appeal -- hearing by adjudicator -- indication at close of hearing that appeal would be allowed -- no reasons given -- adjudicator fell ill before promulgating determination and reasons -- chief Adjudicator ordered transfer of case to another adjudicator -- re-hearing -- objection taken to re-hearing whether the first adjudicator had determined the appeal -- whether Chief Adjudicator had acted according to the rules. Immigration Appeals (Procedure) Rules 1984 rr 15, 33, 39.
Held:
Two citizens of Sri Lanka were refused entry clearance as visitors. They appealed to an adjudicator. At the end of the hearing the adjudicator indicated that he was minded to allow the appeal, but he gave no reasons. Before he had the opportunity to issue a written determination with reasons, he fell ill. The Chief Adjudicator concluded that the adjudicator would not be able within an acceptable time, to write a determination. Accordingly he exercised his power under the Procedure Rules transferring the case to another adjudicator. A re-hearing was arranged. At that hearing counsel raised an objection to the proceedings, challenging the power of the Chief Adjudicator to transfer the case, in the events which had happened. The adjudicator adjourned the hearing to allow the Chief Adjudicator's ruling to be challenged. Following Lila the Tribunal held it had no jurisdiction. The Chief Adjudicator's decision was accordingly challenged by way of judicial review. Held: 1. Rule 39 of the Procedure Rules sets out two alternative procedures for the promulgation of a determination and the reasons therefor: one where a determination is reserved, the other where it is not. The distinction is important because it establishes when the limited time for appealing to the Tribunal will begin to run. Time does not begin to run until the parties have received the reasons for the determination. 2. The adjudicator gave no reasons at the hearing; it followed that in any event he would have had to issue a determination in writing, with reasons. 3. It followed that the adjudicator had not determined the appeal: he had not completed his task: he had not "disposed of" the proceedings before him. 4. The Chief Adjudicator had accordingly properly exercised his powers under r 33 of the Procedure Rules.Cases referred to in the Judgment:
R v Immigration Appeal Tribunal ex parte Nazarali Lila and anr [1978] Imm AR50.
Counsel:
GMG Haque for the applicants; R Jay for the respondent PANEL: Henry JJudgment One:
HENRY J: In this application for judicial review an order of the Chief Adjudicator made under rule 33(1) to transfer proceedings that have not been disposed of from one adjudicator to another made on 31 May 1989 is challenged. The matter arises in this way. The applicants, Mr and Mrs Kandiah, who live in Colombo, Sri Lanka, applied for a visa to enter the United Kingdom as visitors for six months. The entry clearance officer in Colombo refused that application on the basis that he was not satisfied that they would leave at the end of the period. Accordingly, Mr and Mrs Kandiah appealed against that to the adjudicator in the United Kingdom. The appeal was fixed for 7 December 1988 and came before the adjudicator, Mr Coley. One witness, the potential sponsor of Mr and Mrs Kandiah, was called before him. After that witness had been called, the adjudicator indicated that he intended to allow the appeal. There are on the evidence before me two versions of what happened. First, in the second adjudicator's report the advocates appearing before him agreed that Mr Coley had not invited either side to address him and had said: "I intend to allow this appeal." The sponsor, Mr Ratnasothy, has sworn an affidavit and puts the matter this way: "At the end of the hearing the adjudicator told my counsel there was no need for him to address him on this matter. He said ^on the evidence before me I am satisfied as to the applicant's case and I wanted to allow the appeal'. He further said written determination will be sent to instructing solicitors by post." It is clear from the documentation and the chasing letters that were sent that solicitors were expecting such a letter which the rules would in any event have required. The months passed. Mr Coley was pressed for the written determination. Nothing was forthcoming until on 31 May 1989, the Chief Adjudicator sent to the parties a letter containing the decision complained of. It said this: "I have been requested by the Chief Adjudicator to inform you, with regret, that Mr WJ Coley, the adjudicator seized of the above appeal, was taken ill at the beginning of March 1989 and that it appears unlikely that he will be in a position to resume his duties in the foreseeable future. "In these circumstances the Chief Adjudicator has made an order under paragraph 33(1) of the Immigration Appeals (Procedure) Rules transferring this appeal for determination before another adjudicator. He is appreciative of the inconvenience and, indeed the costs to your client which will be involved in the rehearing of this appeal and he has therefore suggested it may be desirable for you to communicate with the Home Office with a view to examining whether there is a possibility this matter can be resolved without further hearing. "Accordingly no further action will be taken on this appeal for three months unless and until application is made by either party for the matter to be relisted. However any such application will be given expedited attention." That way of proceeding was not satisfactory to the applicants who felt that the adjudicator had effectively determined the appeal by saying that he intended to allow it. However, they did not make direct and immediate challenge to what the adjudicator had done, but instead, when the appeal was set up, they attended at the appeal hearing on 29 August 1989. The point they took at that hearing was that this adjudicator had no jurisdiction because the matter had already been decided, and that they wished to challenge the rule 33 direction of the Chief Adjudicator. So in those circumstances they invited the adjudicator, Mr Whitaker, now seized of the matter, to adjourn the matter. This course was initially not one that the adjudicator was disposed to do. He wished to hear the witness who was there and then consider the position. However, counsel appearing for the applicant indicated, after being given time for reflection, that the applicant was going to take no further part in the hearing before the adjudicator, and so the adjudicator, against his first impression, proposed to adjourn the case for three months to allow there to be a challenge to the Chief Adjudicator's decision transferring the case to him. His determination was on 16 October 1989, and after that on 30 October, 1989 inter alia, that determination was appealed to the Immigration Appeal Tribunal on three grounds. First, that the direction of the Chief Adjudicator transferring it was wrong in law; second, that the appeal had been allowed by the first adjudicator and had been disposed of orally; and, third, that the second adjudicator had been wrong to embark on it. By letter of 11 January, the Immigration Appeal Tribunal responded to the notice of appeal saying that there was nothing before the Tribunal on which it had jurisdiction to adjudicate. The case of R v Immigration Appeal Tribunal, ex parte Nazarali Kassam Lila and another [1978] Imm AR 50, to which I have not been referred, is there referred to. The letter concludes with the words: "It is of course open to you to seek a remedy elsewhere." The applicants took that to be an invitation to proceed by way of judicial review. They have done so, and they obtained leave from Hodgson J so to proceed. The matters in question really turn on what it was that Mr Coley, the adjudicator, was doing in the circumstances that I have there described. Under the Immigration Appeals (Procedure) Rules 1984, rule 39 deals with the promulgation of a determination and reasons therefor. They set out there two alternative procedures. First, where the determination has been reserved; and, second, where the determination was not reserved. For "determination" one could easily read "judgment" -- the scheme distinguishes between where the tribunal reserves judgment and where it does not. It deals first with where the appellate authority does not reserve the determination on the appeal. In that situation the adjudicator: "shall pronounce the determination and the reasons therefor at the conclusion of the hearing, and shall send to every party to the appeal, as soon as practicable, a copy of the document recording the determination, referred to in paragraph (3) below." Paragraph (3) of the rule says: "The determination on any appeal shall be recorded by the appellate authority in a document signed by the adjudicator . . . and the reasons for the determination shall be set out therein." That is where the determination is not reserved. The alternative scenario is this. It is set out in paragraph (2): "Where there is a hearing of an appeal, the appellate authority shall as soon as practicable notify every party to the appeal of its determination by sending to each party a copy of the document recording the determination referred to in paragraph (3) below", and then one is back to the same paragraph, namely the document recording the determination setting out the reasons and signed by the adjudicator. That too has to be done as soon as practicable. There are important practical considerations that make it necessary for the parties to know whether the determination has been reserved or whether it has not and that is because it affects the time limits for appeal. That is dealt with in rule 15 of the rules. Rule 15(1) reads: "Application to an adjudicator for leave to appeal shall be made forthwith after the determination in question. "(2) Application to the Tribunal for leave to appeal . . . may be made or given not later than 14 days after the determination in question." In either case it is necessary to be sure when the determination in question is because that starts the time for appeal running. That is dealt with by paragraph (4) of that rule: "In this rule any reference to a determination is a reference:- (a) where it is pronounced at a hearing in the presence of the appellant or his representative, to its pronouncement . . ." -- that is to say, in a case where the determination is not reserved. Where it has been so pronounced, then provided rule 39(1) has been followed the reasons will have been given as well and so there will be no difficulty in the time for appeal running from that moment. Where the determination is reserved paragraph (4)(b) of the rule comes into play. That rule provides: "in any other case [any reference to a determination is a reference] to the sending to the appellant in accordance with rule 44, or to the delivery to the appellant, of a copy of the document, referred to in Rule 39(2), recording the determination." Rule 39(2) refers one back to rule 39(3). That is the document setting out the determination and the reasons for it signed by the adjudicator. That then starts time running in that case. In no circumstances does the time for appeal start running against a party before it has the reasons for the decision. So much then for the rules. The next question is, what happened at the hearing itself? It seems to me that there is no difference between the formulation in the affidavit and that set out as being agreed between the advocates before the adjudicator, Mr Whitaker. In neither circumstances were any reasons given by the adjudicator, Mr Coley. He simply indicated that it was his intention to allow the appeal and that his written determination would follow. His written determination would have had to follow in any event whether he was reserving his judgment or whether he was not reserving his judgment. What was he doing? It seems to me clear that he was reserving his judgment, but announcing how he intended to find in that judgment. This is often done by courts. It is often done tacitly in situations where they indicate that they do not wish to call upon a party from whom they would otherwise expect to have had submissions. Everyone in court then knows the result, and there is no objection to that course being taken. It is equally often done expressly when the tribunal thinks that for whatever reason the parties should know the decision. It is often done in the situation where the court has made up its mind, but wishes time for reflection in order to get its reasons into coherent form and set them out in writing. Mr Coley, the adjudicator, would have known from operating appeals under these rules that if he was not reserving his determination, then he would have to give his reasons there and then orally so that the parties knew where they stood so far as the appeal went. He did not do that. I am not prepared to assume that he was acting irregularly. It seems to me perfectly clear that what he was doing was simply reserving his determination, but announcing how he intended to find. That is what the parties understood him to be doing, otherwise the respondents to the appeal, the Home Office, would most certainly have complained because it would have placed them in an impossible position, namely having time for appealing running against an unreasoned judgment. That is the position which the scheme of the Act and the regulations made under it intended should never occur. If anyone had thought that Mr Coley had been acting irregularly, someone would have said so at the time. Therefore, Mr Coley had not determined this appeal. He had not completed his task under it because to complete his task it would be necessary for him to formulate his reasons and to promulgate the document containing his determination and his reasons, and that he never did. In those circumstances, what was the Chief Adjudicator to do? He use his powers under rule 33, Paragraph (1) of that rule reads: "Where any proceedings before an adjudicator have not been disposed of by the adjudicator and the Chief Adjudicator . . . is of the opinion that it is not practicable without undue delay for the proceedings to be completed by that adjudicator, he shall make arrangements for them to be dealt with by another adjudicator; and any adjudicator to whom any proceedings are transferred as aforesaid shall have power to deal with them as if they had been commenced before him." The Chief Adjudicator had a power to transfer the proceedings, therefore, first, where the proceedings before the adjudicator, Mr Coley, had not been disposed of by him, and that clearly is the case because he had not given his reasons nor prepared the written document setting out his decision and his reasons; and, second, the Chief Adjudicator, knowing Mr Coley's medical condition clearly was of the opinion that it was not practicable without undue delay for the proceedings to be completed by that adjudicator. In those circumstances, it seems to me that he was clearly right in what he did. Therefore, this application for judicial review fails.DISPOSITION:
Application dismissedSOLICITORS:
K Siva & Co; Treasury SolicitorCopyright notice: Crown Copyright
