R (Secretary of State for the Home Department) v Immigration Appeal Tribunal
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE,SCOTT BAKER,MR JUSTICE SCOTT BAKER |
| Judgment Date | 09 April 2001 |
| Neutral Citation | [2001] EWHC 261 (Admin) |
| Docket Number | Case No: CO/3937/00 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 April 2001 |
[2001] EWHC 261 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
QUEENS BENCH DIVISION
The Honourable Mr Justice Scott Baker
Case No: CO/3937/00
Mr Michael Fordham (instructed by Treasury Solicitor for the Claimant)
Mr Robin Tam (instructed by Treasury Solicitor for the Defendant)
The Claimant in this claim for judicial review is the Secretary of State for the Home Department. The Defendant is the Immigration Appeal Tribunal (the Tribunal). The underlying litigation concerned Musa Zengin, an asylum seeker, who is an interested party but who has taken no part in the present application which raises two points of law:
i) the Tribunal's power to remit a case for rehearing by an adjudicator and
ii) the circumstances in which an order made by a chairman of the Tribunal sitting alone may be varied or set aside.
The facts are very simple; the law much more difficult. On 20 October 1998 Mr Zengin's claim for asylum was refused. He appealed to a special adjudicator who allowed his appeal on 27 August 1999. The Secretary of State was granted leave to appeal and on 6 March 2000 the appeal was listed for mention before a Tribunal chairman sitting alone (Mr Fox). Mr Zengin's solicitors wrote to the Tribunal saying they did not intend to appear at the mention and asked for the appeal to be listed for hearing. This was an entirely proper course to save costs, and the Tribunal was aware that the appeal was resisted. Mr Fox took the view that the special adjudicator's decision was flawed and that the case should be remitted to be heard afresh by a different adjudicator. He persuaded Mr Zengin, who had attended in person, to agree and accordingly made an order under rule 17 (2) of the Asylum Appeals (Procedure) rules 1996 ("the 1996 Rules").
Mr Zengin's solicitors were not surprisingly upset and wrote complaining that such an order should not have been made in their absence when all they had expected to happen was for a hearing date to be fixed. They applied for Mr Fox's order to be set aside and for the appeal to be determined. They wished to argue that the special adjudicator's decision should be upheld and the Secretary of State's appeal dismissed. The application was listed before a full Tribunal presided over by Collins J on 10 May 2000, but it was adjourned for legal argument until 10 June 2000 when the Tribunal decided it did have jurisdiction to set aside Mr Fox's order and that the appeal should be listed for hearing in the normal way as soon as possible. (see [2000] Imm AR 518).
The relief sought by the Claimant in the present proceedings is limited to declaratory relief. No quashing order is sought, because the Claimant accepts that the circumstances of Mr Fox's decision would have entitled Mr Zengin to have that decision quashed by the Administrative Court on Judicial Review. Whilst it is important for the law to be clarified, Mr Zengin ought not to be deprived of the benefit of the order of 10 June 2000, nor should further delay and uncertainty be injected into his case.
Introduction
Both Mr Tam, supporting the Tribunal's decision, and Mr Fordham for the Claimant, contend that the Tribunal has power to remit to a special adjudicator for a rehearing, but they spell out that power from the legislation in very different ways. I have to consider the possibility that neither is right and that there is no such power of remittal. That is a conclusion I would only reach with the greatest reluctance. Everybody is agreed that such a power is an important tool in the Tribunal's armoury and furthermore that over a number of years many remittals have been ordered on the basis that such a power does exist. For example the existence of such a power is crucial to meet the case where an adjudicator hears an appeal in the appellant's absence but the Tribunal learns that there was a good reason for his absence of which the adjudicator was unaware. The Tribunal referred to this as the paradigm case.
This case is concerned with what I shall call the old law, that is the Immigration Acts 1971 and 1993 and various rules that predate the Immigration and Asylum Appeals (Procedure) Rules 2000 ("the 2000 Rules"). The Immigration and Asylum Act 1999 and the 2000 Rules ("the new law") are not materially different for the purposes of the present questions before the court. For convenience, there is annexed to this judgment a table that shows the corresponding provisions in the old and new law.
The key statutory provisions are Sections 19, 20 and 22 of the Immigration Act 1971. Section 19 covers determination of appeals by adjudicators. It provides, so far as material:
"(1) Subject to Sections 13 (4) and 16 (4) above, and to any restriction on the grounds of appeal, an adjudicator on 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; or
ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer that the discretion should have been exercised differently; and
b) in any other case, shall dismiss the appeal.
(2) …………………..
(3) Where an appeal is allowed, the adjudicator shall give such directions for giving effect to the determination as the adjudicator thinks requisite, and may also make recommendations with respect to any other action which the adjudicator considers should be taken in the case under this Act; and, subject to Section 20 (2) below, it shall be the duty of the Secretary of State and of any officer to whom directions are given under this subsection to comply with them."
Sections 20 and 21 are together headed "Appeals from adjudicator to Tribunal, and review of decisions". Section 20 is headed "Appeal to Tribunal from determination of adjudicator". It provides:
"(1) 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, and the Tribunal may affirm the determination or make any other determination which could have made by the adjudicator.
(2) Directions given by an adjudicator under Section 19 (3) above need not be complied with so long as an appeal can be brought against his determination and, if such an appeal is duly brought, so long as the appeal is pending; and if the Tribunal affirm his determination allowing the appeal, they may alter or add to his directions and recommendations under Section 19 (3) or replace them with their own directions and recommendations, and the provisions of that subsection shall apply to directions given by them accordingly.
(3) Where an appeal is dismissed by an adjudicator but is allowed by the Tribunal, Section 19 (3) above shall apply with the substitution of references to the Tribunal for references to the adjudicator."
Sections 22 and 23 are headed "Supplementary" and Section 22 itself is headed "Procedure". Section 22 (1) contains the rule-making power. Section 22 (2) provides:
"Rules of procedure may include provision -
a) enabling the Tribunal, on an appeal from an adjudicator, to remit the appeal to an adjudicator for determination by him in accordance with any directions of the Tribunal, or for further evidence to be obtained with the view to determination by the Tribunal; or
b) enabling any functions of the Tribunal which relate to matters preliminary or incidental to an appeal, or which are conferred by Part II of Schedule 2 to this Act, to be performed by a single member of the Tribunal; or
c) ……. ………………………………………."
The relevant rules are Rule 21 of the Immigration Appeals (Procedure) Rules 1984 ("the 1984 rules") and rule 17 (2) of the 1996 rules. Rule 21 is headed "Remittal of appeal for determination by adjudicator". It provides:
"(1) The Tribunal may, if in the circumstances of a particular appeal it thinks it appropriate to do so, remit that appeal to an adjudicator for determination by him in accordance with any directions given to him by the Tribunal.
(2) The adjudicator to whom an appeal is remitted under this Rule may be either the adjudicator whose determination is the subject matter of the appeal or some other adjudicator.
(3) Subject to any necessary adaptations Rules 17, 18 and 19 shall apply in relation to any proceedings on an appeal remitted to an adjudicator under this Rule as they apply in relation to proceedings before the Tribunal."
Rule 17 is headed "Deciding an appeal". Rule 17 (2) provides:
"Unless it considers:
a) that it is desirable in the interest of justice and
b) that it would save time and expense to remit the case to the same or another special adjudicator for determination by him in accordance with any directions given to him by the Tribunal, the Tribunal shall determine the appeal itself."
The Tribunal, in my judgment quite correctly, pointed out that it has only those powers that are given to it by the statutes and rules that govern its jurisdiction and procedure. It has no inherent powers save those which enable it to prevent its processes being abused. Without these it could not function properly as a tribunal. What, in particular, it does not have is power to deal with appeals in a way which is not permitted by the governing statutes or rules.
The Tribunal found that it had two separate powers to remit a case to an adjudicator. First an express power granted under Rule 21...
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