R v Immigration appeal tribunal ex parte Mariam Chumun and Another
| Jurisdiction | England & Wales |
| Judgment Date | 25 November 1986 |
| Date | 25 November 1986 |
| Court | Queen's Bench Division |
Queen's Bench Division
Hodgson J
R Drabble for the applicants
P Vallance for the respondents
Cases referred to in the judgment:
R v Inhabitants of SlawstoneENR (1852) 2 QB 388.
R v Recorder of Richmond (1858) 27 LJMC 197.
Browne v BlackELR [1912] 1 KB 316.
Retail Dairy Co Ltd v ClarkeELR [1912] 2 KB 388.
Stanley v ThomasELR [1939] 2 KB 462.
Holt v DysonELRUNK [1951] 1 KB 364: [1950] 2 All ER 840.
T O Supplies (London) Ltd v Jerry CreightonELRUNK [1952] 1 KB 42: [1951] 2 All ER 992.
Sandland v NealeELRUNK [1956] 1 QB 241: [1955] 3 All ER 571.
R v County of London Quarter Sessions Appeals Committee ex parte RossiELRUNK [1956] 1 QB 682: [1956] 1 All ER 670.
Beer v DaviesELRUNK [1958] 2 QB 187: [1958] 2 All ER 255.
Layton v ShiresELRUNK [1960] 2 QB 294: [1959] 3 All ER 587.
Money v Bicknell (unreported, QBD, 10 April 1959).
Commissioners of Customs and Excise v Cure and Deely LtdELRUNK [1962] 1 QB 340: [1961] 3 All ER 641.
Hosier v GoodallELRUNK [1962] 2 QB 401: [1962] 1 All ER 30.
Moody v Godstone Rural District CouncilWLRUNK [1966] 1 WLR 1085: [1966] 2 All ER 696.
Hewitt v Leicester CorporationWLRUNK [1969] 1 WLR 855: [1969] 2 All ER 802.
Maltglade Ltd and ors. v St Albans Rural District CouncilWLRUNK [1972] 1 WLR 1230: [1972] 3 All ER 129.
R v Immigration Appeal Tribunal ex parte Armstrong [1977] Imm AR 80.
R v Immigration Appeal Tribunal ex parte Mehmet [1977] Imm AR 56.
R v Secretary of State for the Home Department ex parte Draz [1985] Imm AR 215.
Practice and Procedure time limits for appealing to adjudicator and Tribunal when time begins to run whether, where it is shown that a relevant notice has not been received by a potential appellant, it may yet be deemed to have been received when a relevant document is sent. Immigration Act 1971 ss. 3(5), 5(1), 15, 18(1)(a), 20(1), 22: Immigration Appeals (Procedure) Rules 1972 rr. 3, 4, 5, 6, 15, 39, 44: Immigration Appeals (Notices) Regulations 1972 r. 3 Interpretation Act 1898 s. 26; Interpretation Act 1979 s. 7.
The two appeals were heard together, they both depended on the same point of law. Both applicants had been held to have no right of appeal because the time during which an appeal could have been lodged had expired before appeal proceedings were begun.
In the case of Chummun two visitors became overstayers. The Secretary of State decided to initiate deportation proceedings pursuant to s. 3(5)(a) of the Immigration Act 1971. The notice of intention to deport was sent to the applicants, but not received by them. By the time they learnt of the notice a deportation order had been signed and thus their rights of appeal were at an end.
In the case of Bano-Ovais an appeal to an adjudicator against a decision to deport under s. 3(5)(a) was dismissed by him. That determination was sent to the applicants' solicitor who however had moved offices. The determination was not received by him. No attempt was made to serve it on the appellants personally, although their address was known. When the appellants did become aware of the failure of their appeal, the statutory time limit for lodging an application for appeal to the tribunal had expired.
The question before the Court was when, on a true interpretation of the relevant statutory provisions, did the time within which an appeal had to be brought, begin to run.
Held:
1. Time begins to run, both for appeals to an adjudicator and to the Tribunal from the date the relevant document on which an appeal would be based is sent.
2. Following ex parte Rossi, the document is sent at the time when it would be delivered in the ordinary course of post.
3. However, if it can be shown that the document was delayed and only delivered at a later date, time will only run from that later date.
4. If it can be shown that the document was never delivered at all, then time will never have begun to run.
5. It was not possible, on a true interpretation of the statutory provisions, to rely solely on the date on which the document was posted; ex parte Draz disapproved.
6. Obiter if a document relating to a decision appealable to an adjudicator were returned undelivered then, following ex parte Mehmet it seemed that the immigration authorities could immediately rely on Notices Regulation 3(4) (no obligation to give notice if no address known): no such provision however existed in relation to applications in respect of appeals to the Tribunal.
Hodgson J: Because these two cases raise similar issues I agreed to hear them together. Mariam Bibi Chummun and Begam Chummun seek judicial review of deportation orders made in respect of both applicants on 16 March 1982 and a decision of the Immigration Authorities notified by telex on 14 November 1985 that the applicants were barred from petitioning for further leave to appeal by the provisions of Rule 5(4) of the Immigration Appeals (Procedure) Rules 1972. They seek relief by way of certiorari quashing the two orders and a declaration that Rule 5(4) is ultra vires the provisions of section 22 of the Immigration Act 1971.
Halima Husan Bano-Ovais and Huma Gazi seek judicial review of the refusal of the Immigration Appeals Tribunal to entertain an application for leave to appeal communicated by letter dated 4 January 1985 and notices of intention to deport dated 6 October 1983. They also seek a declaration that Regulation 15(2) of the Immigration Appeals (Procedure) Rules 1972 is ultra vires, mandamus directed to the Immigration Appeals Tribunal to consider an application for leave to appeal against the decision of an adjudicator dated 3 October 1983 and certiorari quashing the notices of intention to deport.
So far as relevant to the issues raised in these proceedings the immigration histories of the applicants can be briefly stated and it is convenient to set them out here.
Chummun.
Mariam arrived in the United Kingdom on 26 January 1976 with leave of entry as a visitor; she was aged 8. Begam arrived also as a visitor in July 1976. Both overstayed. On 16 June 1980 notices of intention to deport were sent by recorded delivery to their last known address. The letters were returned marked Gone away. On 16 March 1982, the Secretary of State made deportation orders. The applicants did not know that these orders had been made until 29 January 1985 when they were served personally upon them. They were told that they could not appeal out of time. By telex, dated 15 November 1985, the Secretary of State said this, inter alia:
The S of S did not rely on Regulation 3(4) of the 1972 Regulations and although the notice was returned undelivered by the Post Office this did not invalidate the service and there is no provision to subsequently reserve a notice properly served in accordance with Regulation 3(1) and 6.
Bano-Ovais.
Mrs Bano-Ovais arrived with her daughter, Huma, as visitors on 30 September 1980. Huma was aged 7. They sought leave to remain. It was refused. They appealed. The adjudicator found against them on 10 August 1982. On 6 October 1983 the Secretary of State gave them notices of intention to deport. The notices were served personally. They appealed. There was an oral hearing on 17 September 1984 before the adjudicator. They were represented by solicitors and counsel. The adjudicator determined against them and notice of determination was posted by recorded delivery on 3 October 1984 to the address of her then solicitors. They had however changed their address without informing the Immigration Authorities. On 9 October 1984, the notice of determination was returned to Thanet House undelivered marked Undeliveredgone away. No further attempt was made to serve although the applicants' proper address was on the file. In December 1984, the applicant discovered that she had failed before the adjudicator. She tried to appeal but was told that there had been good service, that the 14 days' time limit had expired and that there was no discretion to extend time. It was a remarkably lax piece of administration not to serve the applicant personally in those circumstances when there was no discretion to extend time.
With that brief account of the facts I turn to consider the legislative provisions bearing in mind that, in considering the relevant rules made under the powers given by statute, I must look at them in the context of the nature, object and scheme of the legislation as a whole. See Commissioners of Customs and Excise v Cure and Deeley LtdELR. [1962] 1 QB 340 at 367.
Under section 3(5) of the Immigration Act 1971 overstayers are liable to deportation. Under section 5(1) the Secretary of State may make a deportation order against anyone liable to deportation. However, by section 15(2) a deportation order cannot be made against a person so long as an appeal may be brought against the decision to make it and section 15(1) gives a person against whom the Secretary of State has decided to make a deportation order a right to appeal to an adjudicator, subject to the provisions of Part II of the Act. It is to be noted that there is no right of appeal against the making of a deportation order itself; all that a person can do is to apply to the Secretary of State to revoke the order; against a refusal to revoke he can appeal but only after he has left the United Kingdom. (Section 15(5)). So the making of a deportation order has much finality. Section 15(3) and (4) deprive certain persons of any right of appeal.
Section 20(1) provides:
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
The rules of procedure envisaged are as to leave to appeal.
Section 22(1) empowers the Secretary of State to make rules of procedure. The...
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