R v Immigration appeal tribunal ex parte Kardiah
| Jurisdiction | England & Wales |
| Judgment Date | 09 May 1991 |
| Date | 09 May 1991 |
| Court | Queen's Bench Division |
Queen's Bench Division
Henry J
G M G Haque for the applicants
R Jay for the respondent
Case referred to in the judgment:
R v Immigration Appeal Tribunal ex parte Nazarali Lila and anr [1978] Imm AR 50.
Appeal hearing by adjudicator indication at close of hearing that appeal would be allowed no reasons given adjudicator fell ill before promulgating determination and reasons Chief Adjudicator ordered transfer of case to another adjudicator re-hearing objection taken to re-hearing whether the first adjudicator had determined the appeal whether Chief Adjudicator had acted according to the rules. Immigration Appeals (Procedure) Rules 1984 rr. 15, 33, 39.
Two citizens of Sri Lanka were refused entry clearance as visitors. They appealed to an adjudicator. At the end of the hearing the adjudicator indicated that he was minded to allow the appeal, but he gave no reasons. Before he had the opportunity to issue a written determination with reasons, he fell ill. The Chief Adjudicator concluded that the adjudicator would not be able within an acceptable time, to write a determination. Accordingly he exercised his power under the Procedure Rules transferring the case to another adjudicator. A rehearing was arranged. At that hearing counsel raised an objection to the proceedings, challenging the power of the Chief Adjudicator to transfer the case, in the events which had happened. The adjudicator adjourned the hearing to allow the Chief Adjudicator's ruling to be challenged. Following Lila the Tribunal held it had no jurisdiction. The Chief Adjudicator's decision was accordingly challenged by way of judicial review.
Held:
1. Rule 39 of the Procedure Rules sets out two alternative procedures for the promulgation of a determination and the reasons therefor: one where a determination is reserved, the other where it is not. The distinction is important because it establishes when the limited time for appealing to the Tribunal will begin to run. Time does not begin to run until the parties have received the reasons for the determination.
2. The adjudicator gave no reasons at the hearing; it followed that in any event he would have had to issue a determination in writing, with reasons.
3. It followed that the adjudicator had not determined the appeal: he had not completed his task: he had not disposed of the proceedings before him.
4. The Chief Adjudicator had accordingly properly exercised his powers under r. 33 of the Procedure Rules.
Henry J: In this application for judicial review an order of the Chief Adjudicator made under rule 33(1) to transfer proceedings that have not been disposed of from one adjudicator to another made on 31 May 1989 is challenged.
The matter arises in this way. The applicants, Mr and Mrs Kandiah, who live in Colombo, Sri Lanka, applied for a visa to enter the United Kingdom as visitors for six months. The entry clearance officer in Colombo refused that application on the basis that he was not satisfied that they would leave at the end of the period. Accordingly, Mr and Mrs Kandiah appealed against that to the adjudicator in the United Kingdom. The appeal was fixed for 7 December 1988 and came before the adjudicator, Mr Coley. One witness, the potential sponsor of Mr and Mrs Kandiah, was called before him. After that witness...
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