Akewushola v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SEDLEY,LORD JUSTICE LAWS,LORD JUSTICE PETER GIBSON |
| Judgment Date | 20 August 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0820-9 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | IATRF 1999/0468/4 |
| Date | 20 August 1999 |
[1999] EWCA Civ J0820-9
IN THE SUPREME COURT OF JUDICATURE
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
Lord Justice Peter Gibson
Lord Justice Laws
Lord Justice Sedley
IATRF 1999/0468/4
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
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.
Section 13 of the Act provides:
"(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 …………."
The part of sub-section (3) quoted above was introduced by the Immigration Act 1988.
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...
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