FWAD BUBAKER v The Lord Chancellor and Others [CA (Civil), 13/06/2002]
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CLARKE,Lord Justice Laws,LORD JUSTICE LAWS |
| Judgment Date | 13 June 2002 |
| Neutral Citation | [2002] EWCA Civ 1107 |
| Date | 13 June 2002 |
| Court | Court of Appeal (Civil Division) |
[2002] EWCA Civ 1107
IN THE SUPREME COURT OF JUDICATURE C/2002/0618
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH
DIVISION (ADMINISTRATIVE COURT)
(HIS HONOUR JUDGE WILKIE)
Lord Justice Clarke
Lord Justice Laws
MR ANDREW NICOL QC and MISS STEPHANIE HARRISON (Instructed by Messrs Tyndallwoods, Birmingham, B2 5TS) appeared on behalf of the Applicant.
MR PHILIP SALES and MR JONATHAN SWIFT (Instructed by The Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Respondent.
I will ask Lord Justice Laws to give the first judgment.
This is a renewed application for permission to appeal against a decision of His Honour Judge Wilkie sitting as a judge of the Administrative Court, given on 15 March 2002, when he refused the applicant permission to seek judicial review to challenge the validity of the Immigration and Asylum Appeals (Procedure) (Amendment) Rules 2001 made by the Lord Chancellor. I refused permission to appeal on the papers on 1 May 2002.
Paragraph 3 of Schedule 4 of the Immigration and Asylum Act 1999 provides:
"The Lord Chancellor may make rules—
(a) for regulating the exercise of the rights of appeal conferred by Part IV;
(b) for prescribing the practice and procedure to be followed on or in connection with appeals under Part IV, including the mode and burden of proof and admissibility of evidence on such an appeal; and
(c) for other matters preliminary or incidental or arising out of such appeals, including proof of the decisions of the adjudicator of the Immigration Appeal Tribunal."
In exercise of this and other powers, the Lord Chancellor made the Immigration and Asylum Appeals (Procedure) (Amendment) Rules 2001. By Rule 4, there was substituted a new paragraph 15 of the Immigration and Asylum Appeals (Procedure) Rules 2000. The new paragraph 15, which is the distinct subject of this proposed challenge, provides:
"1. Except where paragraph (2) applies, written notice of the adjudicator's determination shall be sent to the parties and the appellant's representative (if he has one).
(2) Where a determination is, in whole or in part, in relation to a claim for asylum and
(a) the claim has been certified by the Secretary of State under paragraph 9(1) of Schedule 4 to the 1999 Act,
(b) the adjudicator has agreed under paragraph 9(2) of Schedule 4 to the 1999 Act, that it is a claim to which paragraph 9 of that Schedule applies, and
(c) the adjudicator has dismissed the appeal,
written notice of the adjudicator's determination shall be sent to the Secretary of State who shall arrange for it to be sent to, or served personally on, the other parties and the appellant's representative (if he has one).
(3) Where paragraph (2) applies, the Secretary of State shall notify the adjudicator whether the written notice was sent to, or personally served on, the appellant and the date on which this was done."
It will be seen that subparagraphs (a), (b) and (c) of paragraph (2) of the new paragraph 15 are cumulative. The effect is that in cases where the adjudicator has dismissed an asylum appeal, and where the Secretary of State has issued a certificate with which the adjudicator has agreed, there is no further avenue of appeal to the Immigration Appeal Tribunal, the adjudicator's determination is to be sent to the Secretary of State who in turn sends it to or serves it on the unsuccessful appellant. In the previous rules in such cases (indeed in all cases) the determination was served on all parties alike by the appellate authority. The class of appeal in question for present purposes is that of appeals under section 69 of the 1999 Act: that is, appeals against refusal of leave to enter the United Kingdom on the ground that the appellant's removal from the United Kingdom would be contrary to the 1951 Refugee Convention. In the present case the appellant has launched such an appeal, having been refused leave to enter by the Secretary of State who also issued a statutory certificate under paragraph 9 of schedule 4 to the 1999 Act. The applicant's appeal has not yet been heard. Depending on its outcome, the appeal is one to which the new rule 15 potentially applies.
Appeals covered by the new rule would include a case in which the grounds of appeal also alleged potential future violation of the appellant's rights under the European Convention on Human Rights. In such a case, even though there was a statutory certificate in relation to the asylum element in the appeal, further appeal to the Immigration Appeal Tribunal would not be barred vis-à-vis the ECHR ground.
There are also certain other avenues by which an appellant may have the adjudicator's decision reconsidered, even though it is a determination falling within the new rule 15(2). There is no doubt as to the purpose of the rule change. It was described by His Honour Judge Wilkie thus:
"It is for the purpose of assisting with the removal of failed asylum seekers; the perception of the Lord Chancellor and the Home Secretary apparently being that there is a problem where appeals have been unsuccessful and have been notified to unsuccessful applicants for asylum, that they disappear or abscond thereby making efforts to detain and remove them from the country more difficult.
The purpose of the changes is evidenced in a letter dated 18 December last from an official in the Lord Chancellor's department to a representative of the Immigration Law Practitioners Association, and further evidenced in an extract from the Home Secretary's press release which was quoted on 29 January of this year in the House of Lords debate on the rules by the Liberal Democrat spokesman saying that it is 'to prevent asylum seekers from having a head start in knowing what the decision is, and if it is unfavourable being able to disappear', and that it was with a view to contributing with 'getting a grip of the removals process and will ensure that those who having exhausted the appeals system and have to right to remain actually do leave the country'."
In my judgment this stated purpose cannot of itself render the rule ultra vires the enabling statutory power. The purpose facilitates the proper execution of the decision.
The proposed basis of the challenge has been somewhat refined since it was before His Honour Judge Wilkie. Essentially two points are articulated in Mr Nicol's skeleton argument for the appellant and have been relied on before us. It is put thus in paragraph 4 of the written argument:
"(a) They [the new rules] are a radical and unique departure from fair procedures in contested litigation which compromise the independence and impartiality of the immigration appellate process and/or create an appearance of lack of independence or partiality within the system and/or
(b) In the absence of attendant procedural safeguards, service of decisions by the Secretary of State on the appellant with a view to facilitating removal interferes with fundamental rights namely the right of access to effective legal representation, it impairs access to the court and/or creates a real risk of removal contrary to the Refugee and/or Human Rights Conventions."
I turn to the first point. At the outset of his submissions, Mr Nicol put it on the footing of an alleged actual bias. He argued, correctly so far as it goes, that the appeal process before an adjudicator is not completed at least until service or notification of the decision has been made. Therefore, he submits, the process is compromised by the fact of service first on the Secretary of State who then serves on the appellant.
Mr Nicol relies on a decision of Harrison J in R v Special Adjudicator ex parte Bashir [2002] Imm AR 1, decided on 6 December 1999. In that case the adjudicator had indicated orally at the end of the relevant hearing that he would allow the appeal, but when he came to write his determination he thought otherwise and in the determination he effectively...
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