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

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	8 April 1976
Citation / Document Symbol	[1976] Imm AR 140
Type of Decision	TH/13476/75
Cite as	R v. Secretary of State for the Home Department, Ex parte Rai, [1976] Imm AR 140, United Kingdom: High Court (England and Wales), 8 April 1976, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b6a61c.html [accessed 26 May 2023]
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R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte RAI, TH/13476/75

Queen's Bench Division

[1976] Imm AR 140

Hearing Date: 8 April 1976

8 April 1976

Index Terms:

Notice of appeal -- Time limit for giving notice expired -- Petition for further opportunity to appeal against Secretary of State's decision -- Petition referred to adjudicator -- Adjudicator's decision adverse to petitioner -- No right of appeal to the Tribunal from adjudicator's decision -- Immigration Act 1971, s 20(1) -- Immigration Appeals (Procedure) Rules 1972 (SI 1972 No 1684), r 5(1)(3).

Held:

In the judgment of the Queen's Bench Divisional Court which is reported below the Court held that the applicant had quite rightly been told that no appeal would lie from the refusal of an adjudicator to grant his petition for a further opportunity to appeal against a decision of the Secretary of State to make a deportation order against him under s 3(5)(a) of the Immigration Act 1971. The applicant had failed to appeal under s 15(1) within the 14 days permitted under r 4(7) of the Immigration Appeals (Procedure) Rules 1972, and with a view to obtaining an extension of time to appeal he had lodged a petition under r 5(1) requesting a further opportunity to appeal n1. The petition was duly considered and refused by the adjudicator. The matter came before the Queen's Bench Divisional Court on an application for a Writ of Habeas Corpus with a view to the applicant's release from Her Majesty's Prison in Bristol where he was being detained pending directions for his removal to India. The application failed, and on the question whether the applicant should have had leave to appeal to the Tribunal from the adjudicator's decision (under s 20(1) of the Immigration Act 1971) the Court followed its earlier decision in the case of Bahadur Singh (21 October 1975, unreported).

n1 Rule 5(1) of the Immigration Appeals (Procedure) Rules 1972 is set out in footnote 4, post.

Per curiam: The right of appeal to the Immigration Appeal Tribunal under s 20(1) of the Act of 1971 was confined to cases where a party to an appeal to an adjudicator was dissatisfied, and this was not an appeal to an adjudicator but a petition under r 5 of the Immigration Appeals (Procedure) Rules 1972.

Introduction:

The relevant facts are set out in the judgment of LORD WIDGERY CJ, below.

A Note on Bahadur Singh's Case appears as an appendix at the end of the present report.

Counsel:

K. S. Nathan for the applicant.

PANEL: Lord Widgery CJ, Donaldson and Kenneth Jones JJ.

Judgment One:

LORD WIDGERY CJ: In these proceedings counsel moves on behalf of one Mohinder Singh Rai for a Writ of Habeas Corpus to bring before the Court the body of the applicant with a view to his discharge, he being presently detained in Her Majesty's Prison at Bristol where he is held by the Governor under authority of the Immigration Acts as a person against whom a deportation order has been made. The sole issue in the proceedings before us is whether it can be shown by the applicant, who carries the onus, that the deportation order is invalid because it was made without authority.

The history of the case is that the applicant came to this country in August of 1969. He told the immigration authorities he wanted to spend a month sight-seeing in England and he was allowed to come in as in as a visitor for a month. Within that month he had got a job and settled himself down, and he has been here ever since. The inference that he has been keeping under cover until his residence for 5 years has been completed is one which is difficult not to draw.

However, be that as it may, as soon as he had been here for 5 years he approached the Secretary of State asking that his position be regularised, and it was then discovered by him that a deportation order had been made under s 3(5)(a) of the Immigration Act 1971, only it had not reached him because it had been served at his last known address and he had apparently not received it. It was apparent to all concerned, and not least I think to the applicant, that he could not hope to regularise his position in view of the Secretary of State's action unless he could obtain authority to appeal against the deportation order out of time because the time for appealing under the Immigration appeals (Procedure) Rules 1972 had long since expired n2.

n2 A right of appeal against a decision of the Secretary of State to make a deportation order under s 3(5) of the Immigration Act 1971 is given by s 15(1)(a) of the Act, and r 4(7) of the Immigration Appeals (Procedure) Rules 1972 (SI 1972 No 1684) provides that an appeal against the Secretary of State's decision may be given not later than 14 days after the decision.

For a person in the applicant's position there is more than one method by which an extension of time to appeal may be obtained. The matter is dealt with in some detail in a judgment of this Court given on 21 October last in the case of ex parte Bahadur Singh n3. It suffices for present purposes to say that the judgments in the earlier case disclose that a person who seeks an extension of time by petition under r 5 of the 1972 Procedure Rules n4 does not thereby acquire any right of appeal to the Immigration Appeal Tribunal if his petition is unsuccessful at the hearing before the adjudicator. On the other hand, it is possible by using rr 8 or 11 to raise the question of lapse of time n5 without necessarily incurring that penalty.

n3 A Note on Bahadur Singh's Case appears at the end of this case, p 143, post.

n4 Rule 5 of the Immigration Appeals (Procedure) Rules 1972, under the heading "Further opportunity to appeal", provides so far as here material as follows:

"(1) Where a person may not appeal by reason that the period permitted under r 4 for the giving of notice of appeal has expired... he may serve on the appropriate officer... a written petition for a further opportunity to appeal and... that officer shall, as soon as is practicable, take such steps as are necessary to ensure that the petition is referred to the appropriate appellate authority together with such particulars relating thereto as have been given by the petitioner or appear to the officer to be relevant.

(3) The appellate authority to which a petition is referred under this rule may... grant the petitioner a further opportunity to appeal if it is of the opinion that, by reason of special circumstances, it is just and right so to do; and, in such case, a notice of appeal given before a date specified by the authority shall be treated for all purposes as if it had been given in accordance with r 4."

n5 Under r 8(3)(b) the respondent to an appeal (in the instant case the Secretary of State) may allege that a notice of appeal was not given within the period permitted by r 4, and where the respondent makes such an allegation it is provided by r 11(1) that "the appellate authority may, and at the request of the respondent shall, determine the validity of the allegation as a preliminary issue". Rule 11(4) is in the following terms: "(4) Where the respondent to an appeal makes such an allegation as is mentioned in r 8(3)(b) and the appellate authority determines, as a preliminary issue, that the notice of appeal was not given within the period permitted by r 4, then, except where a deportation order is for the time being in force in respect of the appellant, the appellate authority shall not be required to dismiss the appeal but may allow it to proceed if the authority is of the opinion that, by reason of special circumstances, it is just and right so to do; and, in such case, the notice of appeal shall be treated for all purposes as if it had been given in accordance with r 4."

As soon as the decision in the earlier case had been given, and was known to the Immigration Appellate Authority, a letter was written to the present applicant at the instigation of an adjudicator to ask him whether he really wanted to proceed under r 5 by petition and pointing out that this was a somewhat technical step and inviting him to consult a solicitor.

This was duly done, and on 27 November 1975 solicitors instructed for the applicant wrote to the Immigration Appeals secretariat and specifically confirmed that they wished to proceed on the applicant's behalf under r 5(1) of the Immigration Appeals (Procedure) Rules 1972. They wrote: "It is not our intention that our client's request for the appeal should proceed under Rule 8(3)(b)."

One cannot imagine a clearer election than is there contained, and one need have no fear of hardship or oppression so far as the applicant is concerned because he was advised by solicitors of his own choice and it is they who were writing the letter in question. So we have, I think, a clear and unequivocal election by the applicant that he is raising his claim to additional time by means of petition under r 5. n4

n4 Rule 5 of the Immigration Appeals (Procedure) Rules 1972, under the heading "Further opportunity to appeal", provides so far as here material as follows:

Under r 5(1) the person who hears the petition is the adjudicator, and that was a procedure duly followed in the present case. The adjudicator gave a fully reasoned account of the argument put before him and of the circumstances of the case. He decided that there was in this case no ground whatever for contending that an extension of time was clear and proper. That is a decision which of course he was entitled to come to, and no one has suggested that he exceeded his authority or was otherwise at fault in his treatment of the application before him.

But his decision was against the interest of the applicant, who then sought to appeal to the Immigration Appeal Tribunal. Having got to that point he was told, and I think quite rightly told, that no such appeal would lie because it had been already decided, as I say, in the earlier case of Bahadur Singh n6 that there was no right of appeal against an adverse decision reached under r 5 of the Procedure Rules.

n6 A Note on Bahadur Singh's Case appears on p 143, post.

Counsel before us today has referred to s 20 of the Immigration Act 1971 and to the right of appeal given by sub-s (1) of that section. The subsection reads as follows:

"Subject to any requirement of rules of procedure as to leave to appeal, any party to an appeal to an adjudicator may, if dissatisfied with his determination thereon, appeal to the Appeal Tribunal."

Mr Nathan contends that being dissatisfied with the adjudicator's decision in the instant case he has under s 20 a right of appeal to the Immigration Appeal Tribunal.

I think not. I think s 20(1) is confined to cases where a party to an appeal to an adjudicator is dissatisfied, and this was not an appeal to an adjudicator; it was a petition under r 5 of the 1972 Procedure Rules. I think that therefore nothing in Mr Nathan's argument about s 20 has in any way made me feel that the decision of this Court in the earlier case of Bahadur Singh was wrong, and I think we ought to follow it. If we follow it, we reach the conclusion that there is no right of appeal such as is argued for by counsel, and accordingly the applicant's rights of appeal are all exhausted, and have for some time been so exhausted.

My attention has been drawn to a passage in the case of Bahadur Singh where apparently this argument under s 20 was raised and rejected by the Court. It shows perhaps that the matter has now been decided in the same sense.

In these circumstances there is no argument directed to the invalidity of the deportation order and I would dismiss the application.

Judgment Two:

THOMPSON J: I agree.

Judgment Three:

KENNETH JONES J: I also agree.

DISPOSITION:

Application for Writ of Habeas Corpus dismissed.

SOLICITORS:

Suriya & Co.

APPENDIX:

Note on Bahadur Singh's Case (QBD, 21 October 1975)

The applicant, Bahadur Singh, by a decision of the Secretary of State made on 1.10.74 under s 3(5)(a) of the Immigration Act 1971 was subject to a deportation order. He failed to exercise his right of appeal under s 15(1)(a) of the Act within the 14 days permitted under r 4(7) of the Immigration Appeals (Procedure) Rules 1972. In March 1975, following upon correspondence between his solicitors and the Home Office the applicant 'petitioned' under r 5(1) of the 1972 Procedure Rules for a further opportunity to appeal, and his petition was referred under the rule to an adjudicator (TH/4280/75). The adjudicator considered the circumstances and decided not to grant a further opportunity to appeal. The applicant sought to appeal to the Immigration Appeal Tribunal against the adjudicator's decision. The President of the Tribunal decided there was no right of appeal to the Tribunal against an adjudicator's refusal to grant a petition under r 5. The applicant then (21.10.75) sought relief in the Queen's Bench Divisional Court by way of Orders of Certiorari and Mandamus.

The Court held (per LORD WIDGERY CJ) that "the right of appeal conferred by s 20 of the Immigration Act 1971 in such wide terms does not in fact extend to enable an appellant to appeal from an adjudicator to the Tribunal on an issue raised under rule 5 by petition". However, having found in the course of the hearing that the applicant had proceeded under r 5 by an innocent mistake of the parties' representatives, whereas if he had 'pushed along with a notice in the form of an appeal' the question of his being out of time could have been disposed of as a "preliminary issue" under the alternative procedures of rr 8 and 11 of the 1972 Procedure Rules without forfeiting the general right of appeal from an adjudicator to the Tribunal, the Court decided that the proper course in the circumstances of this case was "to allow the appeal to the Tribunal to take effect" and to "order Mandamus to achieve that result".

Per O'CONNOR J: "I see no grounds for criticising the Home Office in its dealing with the case because it is quite apparent that everybody concerned thought that there was a right of appeal to the Tribunal from the adjudicator's decision on a petition under r 5 until the President of the Tribunal pointed out his own lack of jurisdiction if that road were followed. I agree with LORD WIDGERY CJ that where there are two alternative roads and by an innocent mistake the applicant has been driven down the road which is least favourable to him, then it would be right to treat the proceedings as though he had been on the road most favourable to him, and for that reason I would order the Writ of Mandamus to go."