R v Secretary of State for the Home Department, ex parte Al-Mehdawi
| Jurisdiction | England & Wales |
| Judge | Lord Bridge of Harwich,Lord Roskill,Lord Brandon of Oakbrook,Lord Oliver of Aylmerton,Lord Goff of Chieveley |
| Judgment Date | 23 November 1989 |
| Judgment citation (vLex) | [1989] UKHL J1123-2 |
| Date | 23 November 1989 |
| Court | House of Lords |
[1989] UKHL J1123-2
House of Lords
Lord Bridge of Harwich
Lord Roskill
Lord Brandon of Oakbrook
Lord Oliver of Aylmerton
Lord Goff of Chieveley
My Lords,
The respondent is a citizen of Iraq who came to this country in 1977 and was given leave to enter as a visitor. Shortly after entry he applied for and was granted temporary leave to remain as a student. The period of this temporary leave was extended from time to time, but the last extension expired in 1984 and on 4 May 1984 an application for a further extension was refused by the Secretary of State. An attempt to appeal against that refusal under section 14(1) of the Immigration Act 1971 was ineffective because the notice of appeal was given out of time. The respondent nevertheless remained in this country and on 12 March 1985 was given notice of the Secretary of State's decision to make a deportation order against him. He instructed solicitors to appeal against this decision and they duly gave notice of appeal under section 15(1) of the Act of 1971 accompanied by a letter saying that the grounds of appeal would follow later.
Notice was in due course given to the respondent's solicitors in accordance with rule 24 of the Immigration Appeals (Procedure) Rules 1984 ( S.I. 1984 No. 2041) that the appeal would be heard on 21 November 1985. Rule 44 expressly provides that any notice, if sent or given to a person representing a party to an appeal in accordance with rule 26(1), shall be deemed to have been sent or given to that party. When the adjudicator sat to hear the appeal on 21 November no further communication had been received from the solicitors and neither the respondent nor any solicitor appeared. Rule 34(2) of the Rules of 1984 provides that "… an appellate authority may proceed with the hearing of an appeal in the absence of a party (including the appellant) if satisfied that, in the case of that party, such notice of the time and place of the hearing … as is required by rule 24, has been given." The adjudicator was invited by the Home Office representative to proceed in accordance with this rule and determine the appeal on the basis of the documents before him. He did so and dismissed the appeal.
What had happened was that the solicitors then acting, although they knew the respondent's current address, had sent notice of the hearing date to him at a previous address and the respondent had never received it. When the solicitors received notice of the dismissal of the appeal, they again misaddressed the communication intended to inform the respondent of the result. The upshot was that by the time the respondent knew of the dismissal of his appeal it was too late to appeal further against the adjudicator's decision.
On 28 April 1986 a deportation order was made and directions were given for the resondent's removal to Iraq, but they were not implemented, evidently because a claim to political asylum was made by the respondent. This was the subject of representations to the Home Office by new solicitors acting for the respondent and a Member of Parliament who intervened on his behalf. Eventually the claim to asylum was refused. On 5 February 1987 the respondent applied for judicial review of the adjudicator's decision dismissing his appeal on the ground, put shortly, that there had been a breach of the rules of natural justice in that he had been denied a hearing. MacPherson J. allowed the application and quashed the adjudicator's decision. The Court of Appeal (O'Connor, Nicholls and Taylor L.J.J.) affirmed MacPherson J. [1989] 2 W.L.R. 603. The Secretary of State now appeals by leave of the Court of Appeal.
The appeal raises a question of great importance with respect to the scope of the remedy by order of certiorari to quash the decision of an inferior tribunal. Does certiorari lie to quash a decision given without hearing the applicant for certiorari when the tribunal giving the decision has acted correctly in the procedure adopted but the applicant was deprived of the opportunity to put his case by the negligence of his own legal advisers or otherwise without personal fault on the part of the applicant. This question had been considered once before by the Court of Appeal in Reg, v. Diggines, Ex parte Rahmani [1985] Q.B. 1109. That was another case relating to the decision of an adjudicator under the Act of 1971 who was mistakenly informed by the United Kingdom Immigrants Advisory Service ("U.K.I.A.S."), acting for the appellant, that they had no instructions. The Court of Appeal quashed the decision on the ground of a denial of natural justice to the appellant arising from the fault of the U.K.I.A.S. The Court of Appeal proceeded on the assumption that there had been no error of procedure by the adjudicator. However, when Ex parte Rahmani came before your Lordships' House on appeal the House held that the question decided by the Court of Appeal did not arise and dismissed the appeal on the ground that the adjudicator had erred in determining the appeal without a hearing in reliance on rule 12(c) of the Immigration Appeals (Procedure) Rules 1972, the rules then in force, since there was no material before the adjudicator which justified him in finding under that sub-rule that no person was authorised to represent the appellant at the hearing. In the instant case, by contrast, no criticism is, nor could be, made of the procedure adopted by the adjudicator in hearing and determining the appeal in the absence of the appellant in the exercise of the express discretion conferred on him by rule 34(2) of the Rules of 1984.
MacPherson J. acted on a concession made by Mr. Pannick, for the Secretary of State, that, unless he could show personal fault on the part of the respondent, the court was bound by Ex parte Rahmani [1985] Q.B. 1109, and should grant the relief claimed. Before the Court of Appeal this concession was withdrawn and the court accepted the submission that the decision of the Court of Appeal in Ex parte Rahmani was not of binding authority since the House of Lords had decided the case on a different ground and had held that the point of principle decided by the Court of Appeal did not arise. The court, however, went on to reach the same conclusion on the question of principle as had been reached by the Court of Appeal in Ex parte Rahmani for essentially the same reasons. Your Lordships must now decide the question of principle and the question whether the reasoning of the Court of Appeal in Ex parte Rahmani was technically binding becomes academic. In these circumstances your Lordships did not find it necessary to hear argument on the point raised relating to the application of the doctrine of stare decisis.
The central submission made by Mr. Laws, for the Secretary of State, is that the so-called rules of natural justice are concerned solely with the propriety of the procedure adopted by the decision maker. In particular, the rule expressed in the Latin maxim audi alteram partem requires no more than that the decision maker should afford to any party to a dispute an opportunity to present his case. This view certainly receives support from many classic statements of the doctrine. The duty "fairly to hear both sides" is described by Lord Loreburn L.C. in Board of Education v. Rice [1911] A.C. 179, 182 as "a duty lying upon everyone who decides anything." In Ridge v. Baldwin [1964] A.C. 41, 64 Lord Reid said of the watch committee who had dismissed the chief constable without a hearing:
"Before attempting to reach any decision they were bound to inform him of the grounds on which they proposed to act and give him a fair opportunity of being heard in his own defence."
Lord Diplock said in O'Reilly v. Mackman [1983] 2 A.C 237, 279:
"Wherever any person or body of persons has authority conferred by legislation to make decisions of the kind I have described, it is amenable to the remedy of an order to quash its decision either for error of law in reaching it or for failure to act fairly towards the person who will be adversely affected by the decision by failing to observe either one or other of the two fundamental rights accorded to him by the rules of natural justice or fairness, viz. to have afforded to him a reasonable opportunity of learning what is alleged against him and of putting forward his own case in answer to it, and to the absence of personal bias against him on the part of the person by whom the decision falls to be made."
In Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374, 410, Lord Diplock, classified the grounds on which administrative action is subject to judicial review under the three heads illegality, irrationality and procedural impropriety. It is the third head which embraces breaches of natural justice. Mr. Laws submits that the very concept of impropriety in the procedure by which a decision is reached necessarily connotes an irregularity in the conduct of the proceedings by the decision maker. Conversely, a failure by the legal adviser or any other agent to whom a party to any proceedings has entrusted the conduct of his case, being beyond the knowledge and control of the decision maker, cannot involve either any procedural impropriety or the breach of any duty which the decision maker owes to that party.
One line of authority on which the Court of Appeal relied, both in Ex parte Rahmani [1985] Q.B. 1109 and in the decision now under appeal, leads to what is at least an apparent exception to the general principle which Mr. Laws' submission seeks to establish. In Reg, v. Gillyard (1848) 12 Q.B. 527 the court quashed by certiorari a conviction by justices shown to have been obtained by fraud and collusion. This was followed in Reg, v. Recorder of Leicester, Ex parte...
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