R v Secretary of State for the Home Department, ex parte Jeyeanthan

JurisdictionEngland & Wales
JudgeLORD JUSTICE JUDGE,LORD JUSTICE MAY
Judgment Date21 May 1999
Judgment citation (vLex)[1999] EWCA Civ J0521-14
Docket Number1997/1496 and 1998/0563
CourtCourt of Appeal (Civil Division)
Date21 May 1999
The Secretary of State for the Home Department
Respondent
and
Athiroobasingham Ravichandran
Appellant
The Queen
and
He Secretary of State for the Home Department
Respondent
Ex Parte Singarajah Jeyeanthan
Appellant

[1999] EWCA Civ J0521-14

Before:

The Master of the Rolls

Lord Justice Judge

Lord Justice May

1997/1496 and 1998/0563

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)

(MR JUSTICE SEDLEY)

Royal Courts of Justice

Strand

London WC2

MR N PLEMING QC and MS M PHELAN (Instructed by Messrs Saleem Sheikh, London, SW1 1RY) appeared on behalf of the Appellant.

MR R TAM (Instructed by The Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Respondent.

MR R TAM (Instructed by the Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Appellant.

MR N PLEMING QC and MR S COX (Instructed by Messrs Anthony J Paterson, London, SW13 9JS) appeared on behalf of the Respondent.

1

Friday 21 May 1999

2

LORD WOOLF, MR:

3

The backgroundThe background

4

This judgment relates to two appeals. There is an appeal by the Secretary of State for the Home Department against the decision of Mr Justice Sedley on 3 April 1998 to grant an application for judicial review by Mr Singarajah Jeyeanthan ("J"). The application for judicial review relates to a decision of an Immigration Appeal Tribunal which had allowed an appeal of the Secretary of State against a decision of a Special Adjudicator. The Special Adjudicator, Professor Counter, had allowed J's application for asylum.

5

The other appeal is by Mr Athiroobasingam Ravichandran ("R"). R appeals to this court against the decision of the Immigration Appeal Tribunal to allow the Secretary of State's appeal against a decision of a Special Adjudicator. In R's case, like J's case, the Special Adjudicator had decided to uphold R's application that he was entitled to asylum. The decision of the Immigration Appeal Tribunal in R's case was given on 11 November 1996. Again the Tribunal had allowed the Secretary of State's appeal. R has been given permission to appeal to this Court.

6

The reason why it was necessary for J to make an application for judicial review rather than to appeal as R has done to this court is that in J's case the Immigration Appeal Tribunal allowed the Secretary of State's appeal only to the extent of remitting J's case to a Special Adjudicator for re-hearing. There is no appeal against this category of decision.

7

Both appeals raise the same issue. The issue is the consequence, if any, of the Secretary of State failing to use the prescribed form for applying for leave to appeal from the Special Adjudicator to the Tribunal. Although the prescribed form was not used it is accepted that the only practical omission is the absence of a declaration of truth. In J's case the Tribunal decided this issue in favour of the Secretary of State. Sedley J took a different view from that of the Tribunal and held that the failure to use the prescribed form meant the Tribunal's decision was a nullity. Accordingly, subject to the outcome of the Secretary of State's appeal to this Court, J is entitled to the benefit of the Special Adjudicator's decision in his favour.

8

In R's case the issue as to the validity of the application for leave to appeal to the Tribunal was not canvassed before the Tribunal. It was only when R's legal advisors became aware of Sedley J's decision in J's case that they sought to appeal on the nullity issue. R had previously obtained leave to appeal the Tribunal's decision on 6 July 1997. That appeal was due to be heard on 24 April 1998. Prior to the hearing of the appeal the parties had agreed that R's appeal to this court should be allowed and the case remitted by this court to the same Special Adjudicator for further consideration. On the hearing on 24 April 1998 R obtained leave to amend his notice of appeal so as to rely on the decision of Sedley J. The appeal was then adjourned to enable the two appeals to be heard together by this court. However, the Secretary of State is still prepared if the appeal succeeds to give effect to the agreement.

9

In J's case as well, the Secretary of State accepts that if his appeal succeeds J's case must be remitted to the Tribunal for re-hearing because of other defects in the first decision of the Tribunal.

10

The position can therefore be summarised by saying that, if this court decides the point of principle in favour of the Secretary of State, J and S will still be entitled to have their applications for asylum reconsidered. On the other hand if the point is decided the other way, J and S will be entitled to asylum without having to be the subject of further proceedings.

11

What Should Be The Approach to Procedural IrregularatoriesWhat Should Be The Approach to Procedural Irregularatories

12

The issue is of general importance and has implications for the failure to observe procedural requirements outside the field of immigration. The conventional approach when there has been non-compliance with a procedural requirement laid down by a statute or regulation is to consider whether the requirement which was not complied with should be categorised as directory or mandatory. If it is categorised as directory it is usually assumed it can be safely ignored. If it is categorised as mandatory then it is usually assumed the defect cannot be remedied and has the effect of rendering subsequent events dependent on the requirement a nullity or void or as being made without jurisdiction and of no effect. The position is more complex than this and this approach distracts attention from the important question of what the legislator should be judged to have intended should be the consequence of the non-compliance. This has to be assessed on a consideration of the language of the legislation against the factual circumstances of the non-compliance. In the majority of cases it provides limited, if any, assistance to inquire whether the requirement is mandatory or directory. The requirement is never intended to be optional if a word such as "shall" or "must" is used.

13

A requirement to use a form is more likely to be treated as a mandatory requirement where the form contains a notice designed to ensure that a member of the public is informed of his or her rights, such as a notice of a right to appeal. In the case of a right to appeal, if, notwithstanding the absence of the notice, the member of the public exercises his or her right of appeal, the failure to use the form usually ceases to be of any significance irrespective of the outcome of the appeal. This can confidently be said to accord with the intention of the author of the requirement.

14

There are cases where it has been held that even if there has been no prejudice to the recipient because, for example, the recipient was aware of the right of appeal but did not do so, the non-compliance is still fatal. The explanation for these decisions is that the draconian consequence is imposed as a deterrent against not observing the requirement. However even where this is the situation the consequences may differ if this would not be in the interests of the person who was to be informed of his rights.

15

Because of what can be the very undesirable consequences of a procedural requirement which is made so fundamental that any departure from the requirement makes everything that happens thereafter irreversibly a nullity it is to be hoped that provisions intended to have this effect will be few and far between. In the majority of cases, whether the requirement is categorised as directory or mandatory, the tribunal before whom the defect is properly raised has the task of determining what are to be the consequences of failing to comply with the requirement in the context of all the facts and circumstances of the case in which the issue arises. In such a situation that tribunal's task will be to seek to do what is just in all the circumstances (see Brayhead (Ascot) Ltd v Berkshire County Council [1964] 2 QB 303, applied by the House of Lords in London & Clydeside Estates Ltd. v Aberdeen District Council [1980] 1 WLR 182).

16

By contrast, a requirement may be clearly directory because it lays down a time limit but a tribunal is given an express power to extend the time for compliance. If the tribunal grants or refuses an extension of time the position is clear. If the time limit is extended the requirement is of no significance. If an extension is refused the requirement becomes critical. It may, for example, deprive a member of the public of a right to appeal which if exercised in time would have been bound to succeed. In the latter situation a directory requirement has consequences which are as significant as any mandatory requirement.

17

A far from straightforward situation is where there is a need for permission to appeal to a tribunal but this is not appreciated at the time. The requirement is mandatory in the sense that the tribunal or the party against whom the appeal was being brought would have been entitled to object to the appeal proceeding without the permission and if they had done so the appeal would not have been accepted. However, what is the position if because they were unaware of the existence of the requirement no objection is made and the appeal is heard and allowed? Is the appellant, when the mistake is learnt of, to be deprived of the benefits of the appeal? If the answer is yes the result could be very unjust. This would be especially so, if in fact the tribunal in error had told the appellant that permission is not needed and he would have been in time to make the application if he had not been misinformed. Could it have been the...

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