R v Immigration Appeal Tribunal, ex parte Temel
| Jurisdiction | England & Wales |
| Judgment Date | 22 April 1988 |
| Date | 22 April 1988 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Purchas, Staughton LJJ Sir George Waller
Miss C Fielden for the appellant
P N Havers for the respondent
Cases referred to in the judgments:
R v Diggines ex parte Rahmani and orsELRUNK (CA) [1985] QB 1109: [1985] 1 All ER 1073.
R v Diggines ex parte Rahmani and orsELR (HL) [1986] AC 475: [1986] Imm AR 195.
R v Immigration Appeal Adjudicator ex parte Hassan Temel (unreported, QBD, 18 November 1987).
Appeal — deportation — appellant did not attend appeal before adjudicator against decision to deport — whether it was proper for the adjudicator to deal with the case in his absence — no appeal to Tribunal — subsequent assertions that some previous advisers had failed to conduct his case with due care — whether the appellant's own conduct made the grant of relief by judicial review inappropriate. Immigration Appeals (Procedure) rules 1984 r. 34.
Appeal from Nolan J. The appellant was a Turkish Cypriot who became an overstayer. An application made subsequently for indefinite leave to remain was refused. That was made through an agent and according to the appellant that agent mishandled his affairs, including losing his passport. Nevertheless, it was clear from the evidence that the appellant was made aware that the application had been refused. He also later received the notice of intention to deport. A leading firm of solicitors then submitted his notice of appeal to an adjudicator: those solicitors subsequently were obliged to withdraw from the case because they could obtain no instruction from the appellant. In fact he had chosen to seek alternative legal advice through the medium of a friend. On the day of the hearing neither the appellant nor his new solicitor appeared. The Court concluded from the evidence that the appellant had never intended to appear—allegedly because he feared he would be detained if he did. The adjudicator heard the appeal in his absence and dismissed it. The appellant learnt of the outcome and went to ground. No application to appeal to the Tribunal was lodged. When eventually he was discovered, application for judicial review was made.
Before the learned judge at first instance it was argued that there had been a breach of natural justice. Following the Court of Appeal judgments in Rahmani reliance was placed on the conduct of some of the appellant's advisers. The Court refused relief, holding that the appellant's own conduct, in his late change of legal advisers and his failure himself to appear at the hearing were material contributing causes of the result. Those arguments were repeated before the Court of Appeal.
Held:
1. A person seeking relief on the grounds of a breach of natural justice resulting from the failure to be heard must discharge the onus that there has been a prejudice to the justice which was administered to him.
2. On the facts, the appellant never intended to appear before the adjudicator: the background facts were before the adjudicator in the papers on file.
3. If an immigrant does not avail himself effectively of the remedies available to him through the immigration appellate authorities, the Court should scrutinise the case with care before holding he should have yet another opportunity.
4. An immigrant of full age and capacity can be expected to attend personally to the task of procuring legal representation: if he leaves it to an intermediary, he cannot subsequently complain if he is ill-served.
5. His failure to deal with his affairs and his failure to attend the hearing were matters properly taken into account in refusing relief: ex parte Rahmani distinguished.
Purchas LJ: This is an appeal from the order of Nolan J made on 18 November 1987 in which he dismissed the appellant's motion under RSC Order 53 rule 3(2) seeking an order of certiorari to quash a decision of an immigration appeal adjudicator given on 5 November 1985.
The appellant, Hassan Temel, is a Cypriot of Turkish nationality. His family was a split family before he was born and there was a question mark over his paternity. He was brought up by his grandmother in Cyprus. His father and his brothers and sisters came to this country and have settled here, as indeed has his uncle. He came to this country after one of his sisters had visited Cyprus and persuaded the family to invite him to come on a visit to her. He came to the United Kingdom on 22 May 1982 and, on the grounds of visiting his sister, was granted leave to enter for one month. On 8 June he obtained leave to extend his visit to 30 July 1982, and that leave on 27 July was extended yet again to 6 September 1982. Thereafter he remained in the United Kingdom as an overstayer. On his visit to this country it is his case that his father's doubts about his paternity were resolved and he became reconciled with his father.
From the point of view of the authorities in this country nothing more was heard of him until 27 May 1983 when an agent, Mr Taylor-Cambray, applied on his behalf for leave to remain indefinitely. This was refused in late June 1983 and notification of the refusal was given to his agent, Mr Taylor-Cambray. Later on, there was a subsequent request for reconsideration and that was refused on the grounds, amongst others, that he was an overstayer by eight months without giving any explanation.
There is a good deal of confusion on the evidence as to what in fact was happening during those eight months. In his own affidavit it is suggested that he sought advice from Mr Taylor-Cambray, who lost his passport by neglect and the money he had been paid and as a result of that he became an overstayer. There is some substance in that because Mr Taylor-Cambray was later sentenced to prison and in his possession there was found, amongst other things, the appellant's passport. That has not seriously been challenged.
In a letter that was written a good deal later, but clearly on information provided by him, by a Maria Davidson of the Hackney Law Centre on 12 January 1987 to Sir Hugh Rossi, a Member of Parliament, on the appellant's behalf, a letter of considerable length, the account was given that he had been given extensions until September 1982 and went on:
‘During this period of time Mr. Temel's father was urging him to stay in the United Kingdom and, for someone who had never previously experienced family life, to find themselves accepted both as a son and as a brother, and to be offered caring relationships never previously existing, such a request would be well-nigh impossible to reject. Mr. Temel therefore asked his father to take him to a solicitor to get some advice as to his immigration status. However, Mr. Temel was informed by his father that he did not need any legal advice, and that he could stay in the United Kingdom past the date his leave expired without encountering problems. It was during this period that Mr. Temel's leave to remain in the United Kingdom expired.’
He was then, according to this letter, put in touch with Mr Taylor-Cambray, whose questionable reputation is described in the letter and the loss of the passport, and then the letter continued:
‘Mr. Temel, with his uncle's help, repeatedly tried to contact Mr. Taylor-Cambray. Eventually they managed to find him in about mid 1983, and showed Mr. Taylor-Cambray a letter from the Home Office which Mr. Temel had received via his uncle's work address. The letter stated that Mr. Temel should leave the United Kingdom in 15 days time from the date of the letter. When Mr. Temel asked Mr. Taylor-Cambray for advice on this development in his case, Mr. Taylor-Cambray assured Mr. Temel that there was nothing to worry about and that he would deal with the matter. Mr. Temel and his uncle therefore agreed to Mr. Taylor-Cambray's suggestion, and for some time they were under the impression that the problems Mr. Temel was experiencing with his immigration status were being dealt with properly by Mr. Taylor-Cambray.’
The reasons that were contained in a letter from the Home Office dated 6 August 1985, as I have already indicated in this judgment, contained a statement that the appellant, when asked for reasons for overstaying, had given no explanation, so that the failure to give the explanation may be due to the oversight of Mr Taylor-Cambray. It may be due to the failure of the appellant to give consistent information to Mr Taylor-Cambray. I do not suppose anyone will ever finally discover where the truth lies.
The refusal of the application, however, for leave to remain permanently was communicated in late June 1983. The police attempted to serve a notice on the appellant, unsuccessfully. Mr Taylor-Cambray, as I have already said, asked for further consideration. Further consideration was given to the matter. The Secretary of State declined to change his mind. Mr Taylor-Cambray was informed on 23 December 1983 and a formal notice was sent on 5 April 1984 via the place of employment of the uncle.
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Secretary of State for the Home Department (Appellant v Shahib Al-Mehdawi (Respondent
...the decision of this court is to be regarded as binding authority on the point of principle. 12Sir Charles referred to R. v. Immigration Appeal Tribunal, Ex parte Temel, an unreported case decided in this court on 22nd April 1988. There, Purchas L.J., referring to Rahmani, said at page 12 o......