R v Diggines, ex parte Rahmani
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON,LORD JUSTICE FOX,LORD JUSTICE PURCHAS |
| Judgment Date | 20 March 1986 |
| Judgment citation (vLex) | [1984] EWCA Civ J1220-5 |
| Docket Number | 84/0496 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 March 1986 |
[1984] EWCA Civ J1220-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE TAYLOR)
Royal Courts of Justice
Lord Justice Stephenson
Lord Justice Fox
and
Lord Justice Purchas
Crown Office List
84/0496
No CO/808/82
and
MR. ANDREW COLLINS (instructed by The Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent (Appellant)
SIR CHARLES FLETCHER-COOKE and MR. K.S. NATHAN (instructed by Messrs. Egerton Sandler Sumner, Solicitors, London W1X 4QQ) appeared on behalf of the Applicants (Respondents)
On 16th December 1981 an adjudicator dismissed, unheard, an appeal by the applicants against a refusal by the Secretary of State to extend their stay in the United Kingdom. What is meant by describing the appeal as unheard will be explained below, as will the circumstances which led the adjudicator quite properly to dismiss it. The applicants did not appeal against the dismissal to the Immigration Appeal Tribunal; they applied for judicial review to quash it. On 13th September 1982 they were given leave to apply for judicial review and on the 16th June 1983 Mr. Justice Taylor quashed the determination of the adjudicator and commanded him to hear the applicants' appeal by an oral hearing. From the judge's decision the adjudicator appeals to this court.
The facts are fully set out in the judgment of the learned judge. The principal applicant is a married woman nearly 30 years of age. She has travelled on an Iranian passport from Iran, where her husband is, to this country moving from one to the other since 1978, the second time on 8th December 1978 when she brought her two small children, who are the other two applicants. On her second visit she enrolled at the Wimbledon Language Centre to study English, and when she returned to this country on 28th September 1979 she was admitted as a student with leave to stay for seven months, subsequently extended to September 1980. On 16th September 1980 she applied for a further extension, giving as her reason "so that I can look after my children while they are at school here". The Secretary of State refused her application and the application of her children on 11th November 1980. Their appeals from this refusal were consolidated and were dismissed by the adjudicator in the circumstances which have now to be described.
The children's applications were refused because their mother's application was refused. In notifying her (hereafter referred to as "the applicant") of his decision the Secretary of State said:
"You have applied for leave to remain in the United Kingdom, in order to look after your children, but there is no provision in the Immigration Rules entitling you to an extension of stay for this purpose".
He also told her:
The United Kingdom Immigrants Advisory Service ("UKIAS"), "a voluntary organisation independent of the Government, will advise you, if you wish, about the decision which has been made against you and on whether to exercise your right of appeal, free of charge",
giving the London address of the service.
The applicant wisely consulted a service which has been of the greatest value to immigrants, but this time, as the judge found, it "let her down rather badly", giving rise to this appeal.
The applicant has sworn an affidavit in which she says that the reason she gave in her last application for an extension was erroneous, and it is right to say that she had stated in her earlier application that she was going to take a one year course in September (1979) and intended to go back to Iran after she had finished her studies. The relevant parts of the rest of her affidavit, which deal with events after she decided to consult UKIAS, are summarized with the other material facts by the learned judge as follows:
"According to her affidavit, she saw a Mr. Moss. She indicated that she wished to appeal against the refusal. He agreed to act on her behalf. He suggested that she should produce various documents relating to the financial support from her husband. On the 8th December, she went to see Mr. Moss. She took with her the documents for which he had asked. She had a short discussion with him in the course of which (she says on oath) she informed him that she had changed her address and had gone to live with her mother at 53 Alexandra Road, London SW19. She asked Mr. Moss whether he required her passport but he said that it was not required at that stage. He said that he would contact her if he required it or anything else. He indicated that he had already lodged the notice of appeal on behalf of the Applicant and the two children and gave her the rather gloomy news that it would be at least another nine months before her appeal would be heard in the ordinary course of events.
"After that meeting, the Applicant continued with her studies at the Wimbledon Language Centre and took the view that so far as this appeal was concerned, the ball was very much in the Advisory Service's court. She thought that they would contact her when they wanted any other information or when anything was going to transpire.
"There was a specific request on the notice of appeal for an indication as to whether a hearing was or was not required. That was positively dealt with and the notice showed that a hearing was requested. Furthermore, on the next page of the notice of appeal, it was indicated that approximately three witnesses would be called in support of the appeal.
"The next thing, so far as the Applicant was concerned, was that she decided to go and see what was happening in March 1982 as she had heard nothing from the Advisory Service. By that time, she had completed her course at the Wimbledon Language Centre and she wished to go on and obtain a professional qualification. She therefore applied to the London Electronics College and was offered a place on their TEC course leading to a TEC Certificate. Before embarking upon that, she decided to go and see Mr. Moss. She did so on the 22nd March, 1982. It then became apparent that, in the interim, her appeal had been heard by an Adjudicator on the 16th December, 1981. There had been no hearing as such but he had dealt with the matter on the papers and had dismissed her appeal.
"It must be said, in the clearest possible terms, that no criticism can be attached to the Adjudicator in any way for dealing with the matter in the way in which he did. The Advisory Service indicated to the Adjudicator that they had not been able to make any contact with the Applicant at what had been her address and therefore that as they had had no instructions from her, they specifically invited the Adjudicator to deal with the matter on the documents. Why the Advisory Service did that remains obscure, but there is an affidavit from Mr. Moss which shows that he delegated the handling of the Applicant's case to someone else in the Advisory Service. It is quite clear that the change of address which the Applicant said that she communicated to them on the 8th December, 1980 was not acted upon by the Advisory Service and the documents that she said she left there have also not turned up. In his affidavit, Mr. Moss says: 'Although I had no written record of the said meeting in December 1980 and could not trace the papers the First Applicant said she had left with me she impressed me as a straightforward truthful person and I saw no reason to doubt what she said'".
Mr. Moss accepted the applicant's statement that she had given UKIAS her change of address with documentary evidence from her bank that they had received a remittance from her husband; he apologised to her for the way UKIAS had handled her case and tried vainly to get the Secretary of State to alter his decision. The Secretary of State to alter his decision. The Secretary of State, after correspondence with the applicant's Member of Parliament, refused to alter his decision and on 16th December 1982 decided to make a deportation order against the applicant, a decision which is the subject of another appeal awaiting the outcome of this.
The adjudicator's determination and reasons were, in the absence of any oral evidence, or indeed any written submissions or argument on the applicant's behalf, short and right. I quote two of its four paragraphs:
"The grounds of appeal, which was lodged by United Kingdom Immigrants Advisory Service on 12 November 1980, were stated at that time as 'to follow after detailed consultation with UKIAS'. However, no further grounds of appeal have in fact been submitted, and in a letter dated 12 November 1981 the UKIAS said that their letter to the appellant at her last known address had been returned. Since they had no further instructions from the appellants and no knowledge of their whereabouts, the UKIAS therefore requested that the Adjudicator decide this case in such manner as he may deem proper. I am therefore determining it under Rule 12.
"No evidence has been submitted to prove that the appellant had the necessary means to support herself and her children, even if the extension requested had been otherwise permissible under the rules, and she has failed to instruct her representative. In these circumstances I can only accept the Secretary of State's reasons for refusing the application, and the appeal is accordingly dismissed".
The Rule 12 to which he refers is Rule 12 of The Immigration Appeals (Procedure) Rules 1972 ( Statutory Instrument 1972 No. 1684), which in effect requires an oral hearing except in five cases, of which I quote the first...
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