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

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	30 July 1993
Citation / Document Symbol	[1994] Imm AR 53
Cite as	R v. Secretary of State for the Home Department, Ex parte Coban, [1994] Imm AR 53, United Kingdom: High Court (England and Wales), 30 July 1993, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b68120.html [accessed 30 May 2023]
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 SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte COBAN

Queen's Bench Division

[1994] Imm AR 53

Hearing Date: 30 July 1993

30 July 1993

Index Terms:

Political asylum -- application on arrival in United Kingdom -- decision to refuse application and leave to enter -- late additional representations made on applicant's behalf -- notice of refusal served on applicant before those representations fully considered -- whether the notice of refusal was a nullity -- whether in consequence the applicant secured by operation of law limited leave to enter the United Kingdom. Immigration Act 1971 (as amended) s 4(1), sch 2 paras 2(1), 6(1): HC 251 para 75.

Held:

The applicant for leave to move for judicial review was a citizen of Turkey. He had applied for political asylum when he arrived in the United Kingdom. After considering the merits of the application the Secretary of State decided to refuse it. A date was set for the final interview during which, subject to anything further put forward by the applicant, the refusal notice was to be given to him, which notice also would refuse him leave to enter the United Kingdom. The day before that interview, his representatives made further representations to the Secretary of State. Although these late representations were subsequently fully considered, it was not disputed that they had not been considered by the date of the final interview, when the notice of refusal was given to the applicant.

In the circumstances, counsel argued that the notice was a nullity and in consequence and by virtue of the provisions of paragraph 6(1) of the second schedule to the 1971 Act (as amended) the applicant had secured limited leave to enter the United Kingdom.

Held

1. The notice albeit served without proper regard to certain provisions of the rules was a notice the immigration officer was empowered to serve under s 4 of the 1971 Act.

2. The provisions of schedule 2, paragraph 6(1) of the Act did not cut down the general powers conferred on immigration officers by s 4 of the Act.

3. The impropriety or procedural irregularity of the notice would be challengeable on judicial review, but the refusal was good and effective unless and until it were struck down by the court.

4. The applicant accordingly did not secure limited leave to enter the United Kingdom by operation of law.

Counsel:

M Gill for the applicant; R Jay for the respondent

PANEL: Hutchison J

Judgment One:

HUTCHISON J: I conclude in this case that I should refuse leave and I will explain my reasons. It is fair that I should say that the case has been argued much more fully than is usual on a leave application. While that does not entitle me to depart from the test which ordinarily applies, namely, whether there is an arguable point, it does enable me, in answering that question, to do so with the advantage of being much better informed by the argument than I would be in the ordinary leave application.

The facts so far as they are material are these. The applicant arrived at Dover on 14 April 1991 and sought political asylum. He completed the standard political asylum questionnaire on 15 April. He was granted temporary admission and having been re-interviewed he was served with a letter indicating that the Secretary of State was minded to refuse his application for asylum on 21 May 1991. On 22 August his solicitors sent a letter to Lunar House to whom his case had been referred, in accordance with paragraph 75 of the immigration rules, making further representations on the issue of asylum. A further interview had been fixed for the following day, 23 August, at which the intent of the Home Office was to serve on him a notice of refusal to enter, because they had reached a conclusion, subject to any matters which might be raised, that the case for asylum was not a good one and was not one they should accept.

The immigration officer carrying out the interview on 23 August was aware of the dispatch and receipt of the representation of 22 August, and indeed, had a copy. There came a time when as the notes of interview show this exchange took place:

"I have to tell you your application is being refused."

The applicant's representatives said:

"May I enquire if you received the submission we sent in last night?"

The immigration officers replied:

"We were told to go ahead with the knowledge that this submission is being considered."

The solicitor indicated that he would have to consult his partners because he had been instructed to submit a request that the submission be considered before a final notice was served on the applicant. It seems there was a short break for him to consult on that matter. The interview then resumed and there was a discussion about, inter alia, certain matters relating to asylum. At the end of the interview the officer said:

"This is the formal refusal, before you read it, explain to him that we have been told not to effect removal directions for the time being to consider submissions properly. You may now read out the refusal notice to him."

The notice was read out to him and he was then given temporary admission, no doubt while the letter of representation, dated 22 August was considered.

There was then a long gap and on 3 March 1993, a letter was dispatched by the Immigration and Nationality Department, to the material part of which I refer:

"I refer to your letter of 22 August 1991 in which you submitted further representations in support of Mr Coban's application for asylum in the United Kingdom. This letter was received by the Home Office, by fax, at 17.44 on 22 August and, therefore, was not considered by the Asylum Division before your client was served with a final refusal notice on 23 August. The Secretary of State, therefore, has considered the information contained in your letter of 22 August to see if it gives cause for him to alter his decision of 23 August 1991 to refuse asylum in the United Kingdom to Mr Coban."

The writer then proceeded to give a very brief explanation as to why he did indeed, after considering those matters, adhere to his views that the claim was not well-founded.

I say for the sake of completeness that subsequently the applicant commenced these proceedings in which the challenge was mounted on a number of grounds, of which that which I am about to describe alone survives. The Secretary of State wrote a further letter, 7 June, in which further detailed consideration was given to asylum. It is that further detailed response which has led the applicant's advisors to abandon all, save the surviving point.

The surviving point is the 24 hour point, because what is alleged, in simple terms, is that the notice of refusal given at the end of the interview on 23 August was a nullity and accordingly there was no notice of refusal within 24 hours of the conclusion of the examination. Indeed, it is said, the examination continued by reason of the continued consideration by the Immigration Department of the further representations of 22 August, and did not conclude until the letter of 3 March at the earliest. Thereafter there was no notice of refusal. Therefore, there was no notice of refusal within 24 hours of the conclusion of the interview.

The stance of the Home Office, however, is that there was a notice of refusal within 24 hours of what was the conclusion of the interview on 23 August. Further, whether the interview concluded or not on that date, there was undoubtedly a notice of refusal on that date.

Mr Gill on behalf of the applicant, confines his contentions (subject to the application to amend, which I shall come to) to this submission: that the applicant by virtue of not having received a notice of refusal within 24 hours of the conclusion of his examination, and by virtue of paragraphs 2(1) and 6 of schedule 2 of the Act, has leave to enter for six months. That contention, he conceded, depends upon the argument that the notice of refusal was a nullity.

Assertions of nullity always gives rise to difficulty, I make it clear that I use and Mr Gill uses the word nullity in this context as meaning something that it is not and never has been of any effect -- it is a true nullity, not something which is defeasible but something which never had any validity.

One can see why that is a necessary ingredient of the argument and it is unnecessary to elaborate on it. Mr Gill submits that that is a consequence which follows, first, by reason of the fact that it was served in breach of the requirements of paragraph 75 of the rules, and secondly, by virtue of the terms of paragraph 6(1) of schedule 2 of the Act. That paragraph reads:

"(1) Subject to sub-paragraph (3) below, where a person examined by an immigration officer under paragraph 2 above is to be given a limited leave to enter the United Kingdom or is to be refused leave, the notice giving or refusing leave shall be given not later than twenty-four hours after the conclusion of his examination (including any further examination) in pursuance of that paragraph;"

That, submits Mr Gill, is imposing a fetter on the power contained in section 4(1) of the Act, vested in an immigration officer to serve a notice of refusal.

Mr Jay, on the other hand, submits that if one concedes, which for the purposes of the argument today he does, that the notice of refusal of 23 August was premature and would have been subject to challenge by way of judicial review, it was nevertheless a valid notice and had effect but was liable to be set aside in judicial review proceedings. He bases that argument on section 4.

Accordingly the first question that arises on that application is, whether it is arguable that the notice of refusal of 23 August was a nullity in Mr Gill's sense. In my judgment it is not. It seems to me that it was a notice of refusal served without proper regard to certain provisions of the rules, but a notice which the immigration officer plainly was empowered to serve by virtue of section 4. Although it is perhaps a nice distinction, I do not think that paragraph 6(1) of the Act helps Mr Gill, because it is not saying that a notice of refusal can only be served after the conclusion of the examination. It is saying that a notice of refusal shall be given not later than 24 hours after the conclusion of the examination.

Now, of course, I am not suggesting that that leads to the conclusion that it is proper to give notice before the formal conclusion of the examination, but what we are considering is not propriety or irregularity, but power. If paragraph 6(1) is to be relied upon to show that there is no power, it does not, in my judgment, do so because it does not cut down the general power conferred on the immigration officer by virtue of section 4(1). I conclude therefore, as did Jowitt J, when considering the matter on paper and refusing leave, that the refusal was good and effective and remains so, unless and until it is struck down as a result of a decision of the court.

In the course of his reply, Mr Gill made an application for leave to amend, to challenge the refusal order of 23 August 1991. He deals with the obvious problem of delay by submitting that it was surely not unreasonable, given that the Immigration Department was considering the further representations of 22 August and continued to consider them until 5 March 1993, not to seek to challenge that refusal notice. By 5 March 1993 the applicant is within three months of the issue in May 1993 of his Form 86A.

I am generally sympathetic to that approach. If I thought that it would do any good, or provide him with any useful argument, I would have been disposed to grant him leave and to find that good reason had been shown why the challenge had not been mounted within three months. But I conclude that no useful purpose would be served because conceding, as he does, that he has no substantive challenge on the asylum side, he must accept that a challenge to the notice of

22 August 1991 will not advance his case on that point. It can only be with a view to salvaging the 24 hour point from the fate to which I have consigned it by virtue of my findings about the status of the refusal notice that leave to amend can be sought.

Since it is only on the supposition that the refusal notice is not a nullity that there is any need to amend to challenge it, it seems to me to follow that no useful purpose so far as the 24 hour point would be served by allowing such a challenge. If the notice was valid until set aside, then it was valid for the purposes of the 24 hour point.

For that reason I have refused leave to amend, I also refuse this application.

DISPOSITION:

Application refused

SOLICITORS:

Wilson & Co; Treasury Solicitor