TUuglaci v. Secretary of State for the Home Department
| Publisher | United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority |
| Author | Immigration Appeal Tribunal |
| Publication Date | 10 August 1992 |
| Citation / Document Symbol | [1993] Imm AR 47 |
| Cite as | TUuglaci v. Secretary of State for the Home Department, [1993] Imm AR 47, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 10 August 1992, available at: https://www.refworld.org/cases,GBR_AIT,3ae6b65c1c.html [accessed 2 June 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. |
TUGLACI v SECRETARY OF STATE FOR THE HOME DEPARTMENT
Immigration Appeal Tribunal
[1993] Imm AR 47
Hearing Date: 10 August 1992
10 August 1992
Index Terms:
Appellate authorities -- jurisdiction -- overstayer -- decision by Secretary of State to initiate deportation proceedings -- application for asylum -- refused -- no notice of appeal lodged -- deportation order signed -- removal directions issued -- appeal to adjudicator -- no alternative destination put forward -- appellant asserted he had intended to appeal against intention to deport -- whether adjudicator had jurisdiction to enquire into circumstances precedent to the issue of removal directions -- whether there was a valid appeal before him. Immigration Act 1971 ss 16(1), 17(1), 19(1): Immigration Act 1988 s 5(1).
Held:
The appellant was a citizen of Turkey, against whom the Secretary of State had signed a deportation order and whom he had directed be removed to Turkey. There was some dispute as to the circumstances in which the notice of intention to deport had been served on the appellant, while in custody. He had then claimed political asylum, and in due course that application had been refused. No notice of appeal against the intention to deport was lodged albeit it was contended that the appellant had intended to appeal. An appeal was lodged however after the deportation order had been signed, against the removal directions to Turkey. When the appeal went before the adjudicator, no alternative destination had been put forward. The adjudicator considered that he was obliged to enquire into the circumstances surrounding the service of the notice of intention to deport the appellant, holding that if the appellant had lodged an appeal against that decision, the Secretary of State would have had no power in law to issue the removal directions. He found however that the notice of intention to deport had been validly served and no appeal had been lodged. He concluded he had no jurisdiction to hear the appeal against removal directions, no alternative destination having been put forward. On appeal to the Tribunal, it reviewed the adjudicator's and its own jurisdiction. Held 1. The adjudicator had misdirected himself in law in seeking to establish the precedent facts in relation to the issue of the notice of intention to deport. 2. Following Omishore there could be no valid appeal before him, in relation to removal directions, unless an alternative destination had been put forward by the appellant. 3. The adjudicator had confused his powers in a deportation appeal (where he had jurisdiction to enquire whether the Secretary of State had had the power to take the decision he had taken) with his very limited jurisdiction in an appeal against removal directions. 4. In the events which had happened, neither the adjudicator nor the Tribunal had a valid appeal before it.Cases referred to in the Judgment:
Secretary of State for the Home Department v Olusegun Omishore [1990] Imm AR 582. R v An Adjudicator ex parte Chuks Joel Umeloh [1991] Imm AR 602.Counsel:
D Gray for the appellant; D Wilmott for the respondent PANEL: Professor DC Jackson (Vice-President) Mrs J Chatwani (Vice-President), N Kumar Esq JPJudgment One:
THE TRIBUNAL: The appellant, a citizen of Turkey, appeals against a decision of an adjudicator (Dr HH Storey) holding that he had no jurisdiction to consider the matter before him. The brief history of the matter, as outlined to us by Mr Gray, is that in 1985 the appellant was admitted to this country as a visitor and he overstayed. On 14 January 1991 he was detained and, at the instigation of a friend of his, Mr Gray went to the police station to see and advise the appellant. It seems clear that the interview of the appellant by the immigration officer fell into two parts -- first the circumstances of entry and the events leading up to the decision to make a deportation order and, secondly, questions in connection with an application for asylum that the appellant had made. It is accepted that at some stage the appellant was served with a notice of a decision to make a deportation order indicating his rights of appeal from that decision. It also appears common ground that the appeal forms were delivered to the appellant when Mr Gray was not present. There is a dispute as to the appellant's ability to understand English, and as to the knowledge (express or implied) of the appellant or Mr Gray of the decision of intention to make a deportation order and, therefore, of any necessity to lodge an appeal if that were so wished. There is before us a letter of 21 January 1991 written by Mr Gray to the Home Office which reads: "We are instructed by Mr Tuglaci presently detained at HM Prison Durham as an overstayer and in respect of whom an application for political asylum was made on the 14th January 1991 and we understand is currently under consideration. We should be grateful if you could kindly let us have a copy of the completed application form and we should also be grateful if you would kindly review the position relating to his continued detention pending a decision on his asylum application. As Mr Tuglaci pointed out to the Immigration Officer Mr Walker, he has been in regular employment since he has been in the United Kingdom and he is therefore unlikely to 'disappear'. He has a current job and although he has recently separated from his girlfriend, they still see each other and he does have a fixed address at 222 Condercum Road, Benwell, Newcastle upon Tyne. We would ask therefore that in view of the above, he could safely be granted temporary admission on condition of reporting to the local police however frequently is considered appropriate together with a residential condition that he resides either at 222 Condercum Road, Benwell or with his friend who assisted at the interview as interpreter, Mr Tahsin Yildis at 27 Heathdale Gardens, High Heaton, Newcastle upon Tyne which is a family home owned by the Yildis family. We look forward to hearing from you". This letter was followed by a further letter of 7 May 1991 following a re-interview of the appellant at Durham Prison. This latter letter is concerned specifically with Mr Tuglaci's application for asylum, and no reference is made to any actual or potential deportation. The asylum application was refused on 9 July 1991, and on 9 October 1991 the appellant was informed that a deportation order had been made against him and that, as a consequence, directions had been made for his removal to Turkey. He was informed of his right of appeal in respect of these directions, and these proceedings are concerned with that appeal. In the grounds of appeal it is asserted that the decision to deport was contrary to law because of the circumstances surrounding the interview on 14 January 1991, it being said that the appellant was prevented because of the restriction on time from providing a comprehensive explanation of his fears on which his asylum application was based. It is stated in the appeal form that the appellant had at that time been unable to find another country willing to take him. Mr Gray contended before the adjudicator and before us that: (i) the appellate authorities had the jurisdiction to consider the power to make the removal directions; and (ii) in this case there was no power to make the directions as the letter of 21 January 1991 should be construed as a notice of appeal from the decision to make the order. In substance, the argument as to (ii) was based on an attack against the circumstances in which the notice was served and, in particular, served on the appellant while Mr Gray was not present. As a consequence, the appellant did not understand the need to lodge a notice. Further, argued Mr Gray, once the Home Office received his letter of 21 January 1991, it should have been realised that the appellant wished to appeal against the deportation decision. The provisions governing this appeal are to be found in sections 17(1) and 19(1) of the Immigration Act 1971. So far as relevant these read: "17(1) Subject to the provisions of this Part of this Act, where directions are given under this Act for a person's removal from the United Kingdom either--
(b) on a deportation order being made against him he may appeal to an adjudicator against the directions on the ground that he ought to be removed (if at all) to a different country or territory specified by him".. . .
"19(1) Subject to sections 13(4) and 16(4) above, and to any restriction on the grounds of appeal, an adjudicator on an appeal to him under this Part of this Act -- (a) shall allow the appeal if he considers -- (i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case. . .
(b) in any other case, shall dismiss the appeal". The adjudicator noted that it was accepted by Mr Gray that no valid appeal had been lodged in accordance with section 17(1)(b) as no country different to Turkey had been specified by the appellant (following the Tribunal decision in Omishore [1990] Imm AR 582 approved by Auld J in R v An Adjudicator ex parte Umeloh [1991] Imm AR 602). Nevertheless the adjudicator held that he had jurisdiction to consider Mr Gray's argument, concluding: "However in neither of those cases was there any question of an earlier extant appeal. Given my duty under section 19(1) of the Act to determine an appeal 'in accordance with the law', I could not adequately dispose of the present case without first considering whether there was an extant appeal since, if there was, there could be no power in law for the directions to have been made nor for the deportation order to have been signed: section 15(2) of the 1971 Act provides that a deportation order shall not be made against a person by virtue of section 3(5) so long as an appeal may be brought against the decision to make it. Such a view appears to be supported by the case of Chummun [1987] Imm AR 92) as well as by certain passages in the Immigration Appeal Tribunal determinations of Boutari (7349) and Korkor (3106). Were I persuaded therefore, that there was an outstanding appeal against the January 14 1991 decision to deport I consider it would be my duty to allow the appeal to the extent that this matter remained outstanding". The adjudicator found that, on the evidence, Mr Toglaci was served with a decision to deport him on 14 January 1991, and that whether the contents were explained to him was irrelevant to the validity of the service. Secondly, thought the adjudicator, the letter relied on by Mr Gray could not be read as a notice of appeal, particularly, as at the stage of writing the letter Mr Gray did not know of the decision to make the deportation order. Conclusions Jurisdiction In our view, with respect, the adjudicator erred in holding he had jurisdiction to consider the validity of the directions in relation to which the appeal is brought. The duty of the adjudicator to consider whether a decision is in accordance with the law is bounded by his jurisdiction in respect of the appeal before him. Section 19(1) expressly makes the consideration of whether a decision "is in accordance with the law" subject to "any restriction on the grounds of appeal". The appeal under section 17(1), as has been emphasised in the two cases already cited, and in a number of other Tribunal decisions, is expressly and precisely limited in respect of the ground which may be urged before an adjudicator ie that the appellant "ought to be removed (if at all) to a different country or territory specified by him". There is not, as the adjudicator appears to have assumed, any provision under section 17(1) for an adjudicator to consider whether there is power in law to make the directions. The wording of section 17(1) is to be contrasted with the adjudicator's jurisdiction under, for example, section 16(1) and, to a more limited extent, under section 5(1) of the Immigration Act 1988. It is not open to an adjudicator or to the Tribunal in an appeal under section 17(1) to consider any issue going to the power in law to make the directions. There was therefore no matter before the adjudicator and is none before us. Was there a notice of appeal? Had we been in Mr Gray's favour on the jurisdiction point, the appeal would have failed on this second point. On this matter we agree with the adjudicator. As we said to Mr Gray, his attack, in substance, goes to the practice adopted in this case both in respect of the service of the notice of the decision to make the deportation order and the reaction (or lack of reaction) by the Home Office to the receipt of Mr Gray's letter. However, even if Mr Gray was right in the criticisms he makes of the actions of the Home Office (and we make no comments on this aspect of the case), this cannot change the nature of the letter. Mr Gray is in fact asserting that this letter should read as a notice of appeal because he would have made one had he known of the decision. That is an argument which can only go to the reasonableness and fairness of the circumstances leading first, to ignorance of the decision at the time the letter was written and, in the end, to the expiry of the period within which a notice of appeal could be lodged. Whatever the extent of the jurisdiction of the Tribunal in regard to matters of fairness in an appeal before it, the existence depends on the appeal being extant, and there is no jurisdiction in the appellate authority to declare that an appeal has been lodged because it would have been had the executive acted in a different manner. Any attack of that nature is a matter solely for judicial review. The appeal is dismissed insofar as we declare that there was no appeal before the adjudicator and there is no appeal before us.DISPOSITION:
No jurisdiction to entertain the appealSOLICITORS:
David Gray & Co NewcastleCopyright notice: Crown Copyright
