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

JurisdictionEngland & Wales
Judgment Date13 June 2000
Date13 June 2000
CourtCourt of Appeal (Civil Division)
Court of Appeal Regina v Secretary of State for the Home Department, Ex parte Saleem 2000 May 10, 11; June 13 Roch, Mummery and Hale LJJ

Immigration - Appeal - Notice - Appeal against refusal of asylum dismissed by special adjudicator - Notice of determination sent to asylum seeker's old address - Application for leave to appeal to be made within five days of receipt of determination - Rule providing that determination deemed to have been received two days after dispatch - Whether deeming provision ultra vires for purposes of application for leave to appeal - Immigration Act 1971 (c 77), ss. 20(1), 22 - Asylum Appeals (Procedure) Rules 1996 (SI 1996/2070), rr 13(2), 23, 42(1)(a)

The applicant, a Pakistani, sought asylum for herself and four of her children. Her application was rejected by the Secretary of State and she appealed to the special adjudicator. On 29 October 1996 she was notified that the appeal hearing had been fixed for 10 February 1998 and directed to supply certain information in accordance with the Asylum Appeals (Procedure) Rules 1996. The applicant did not comply with the directions. On 6 May 1997 she moved house but the authority was not informed that her address had changed. On 12 June 1997 the authority sent a notice to her old address and to her solicitors that a hearing had been arranged for 11 July 1997 to show cause why her appeal should not be treated as abandoned. She did not appear and the special adjudicator dismissed her appeal. On 24 July 1997 a copy of the special adjudicator's determination was sent to her old address and to her solicitors. It informed her that she had a right to apply for leave to appeal to the Immigration Appeal Tribunal but warned her that, in accordance with rules 13(2) and 42(1)(a) of the 1996 Rules, her application had to be made within five working days of the deemed receipt date, 28 July 1997. On 9 February 1998, when she contacted the authority to say she could not attend the hearing fixed for the following day, she was told that her appeal had already been dealt with. She consulted fresh solicitors, who applied immediately for leave to appeal to the tribunal. The tribunal declined jurisdiction as the application was out of time by rule 13(2). On an application for judicial review of the tribunal's decision the judge held, granting the application, that rule 42(1)(a) was outside the rule-making power in section 22 of the Immigration Act 1971, alternatively that the rule was not within the reasonable range of responses which Parliament could have intended the Lord Chancellor to make to the grant of the rule-making power.

On the Secretary of State's appeal—

Held, dismissing the appeal, that rule 42(1)(a) of the rules was not expressly authorised by section 22 of the 1971 Act and went beyond regulating the exercise of the rights of appeal conferred by section 20(1) in that it might deny the chance to appeal to a party who through no fault of his own had failed to comply with the five-day rule; that such a rule was not necessary to achieve timely and effective disposal of appeals and might well deny an asylum seeker the objective of the just disposal of his appeal; that, in so far as it purported to determine conclusively the moment at which an asylum seeker received notice of the special adjudicator's determination for the purpose of starting the five-day period for applying for leave to appeal under rule 13 (though not for determining the date on which other notices had been received by parties), rule 42(1)(a) was invalid; and that, accordingly, the matter should be referred back to the Immigration Appeal Tribunal to consider whether, applying the presumption of service by post under section 7 of the Interpretation Act 1978 in place of rule 42(1)(a), the application for leave to appeal was still out of time (post, pp 451F–452B, 453A–C, 459C–H, 460C–D).

R v Secretary of State for the Home Department, Ex p Leech [1994] QB 198, CA and R v Lord Chancellor, Ex p Witham [1998] QB 575, DC applied.

Per Hale LJ. A right of access to a tribunal or other adjudicative mechanism established by the state is just as important and fundamental as a right of access to the ordinary courts (post, p 458A).

Decision of Hooper J affirmed.

The following cases are referred to in the judgments:

Kruse v Johnson [1898] 2 QB 91, DC

R v Immigration Appeal Tribunal, Ex p Bellache (unreported) 27 April 1997; Court of Appeal (Civil Division) Transcript No 793 of 1997, CA

R v Immigration Appeal Tribunal, Ex p S [1998] Imm AR 252

R v Lord Chancellor, Ex p Witham [1998] QB 575; [1998] 2 WLR 849; [1997] 2 All ER 779, DC

R v Secretary of State for the Home Department, Ex p Leech [1994] QB 198; [1993] 3 WLR 1125; [1993] 4 All ER 539, CA

R v Secretary of State for the Home Department, Ex p Sasiskath [1997] ImmAR 83

R v Secretary of State for the Home Department, Ex p Sivanantharajah [1995] Imm AR 52

Raymond v Honey [1983] 1 AC 1; [1982] 2 WLR 465; [1982] 1 All ER 756, HL(E)

Tarr v Tarr [1973] AC 254; [1972] 2 WLR 1068; [1972] 2 All ER 295, HL(E)

Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442

No additional cases were cited in argument.

APPEAL from Hooper J

By a notice of appeal dated 21 October 1999 the Secretary of State for the Home Department appealed from a decision of Hooper J who on 1 October 1999 granted an application by Asifa Saleem for judicial review and quashed the decision of the Immigration Appeal Tribunal dated 6 March 1998 declining jurisdiction to hear her application for leave to appeal from the dismissal by the special adjudicator of her application for asylum. The grounds of appeal were (1) that the judge was wrong to hold that section 22 of the Immigration Act 1971 did not by necessary implication authorise rule 42(1)(a) of the Asylum Appeals (Procedure) Rules 1996; (2) in the alternative, that the receipt of a notice of determination was determined by section 7 of the Interpretation Act 1978.

The facts are stated in the judgment of Roch LJ.

Ian Burnett QC for the Secretary of State.

Andrew Nicol QC and Mark O'Connor for the applicant.

Cur adv vult

13 June. The following judgments were handed down.

ROCH LJ

The decision the subject of the appeal

On 1 October 1999 Hooper J, on an application for judicial review of a decision of the Immigration Appellate Authority contained in a letter of 6 March 1998 written by the tribunal clerk, granted the application for judicial review and quashed that decision. In his judgment Hooper J said:

“I have reached the conclusion that section 22 of the 1971 Act does not by necessary implication authorise a rule of such draconian consequences as rule 42(1)(a). Alternatively I find the rule not to be ‘within the reasonable range of responses which Parliament could have intended the Lord Chancellor to make to the grant of the rule-making power’.”

The judge was referring to section 22 of the Immigration Act 1971, and rule 42(1)(a) of the Asylum Appeals (Procedure) Rules 1996

The facts

The facts are that the applicant was born in Pakistan on 13 August 1958. The applicant came to the United Kingdom from Pakistan with four of her children on 29 April 1996. Applications for asylum were made on 23 May. Those applications were refused, the refusal letter being dated 12 September 1996. On 21 September removal directions were given. On 26 September Mrs Saleem appealed against the removal directions. That appeal was received by the Immigration Appellate Authority on 27 September 1996. That notice gave Mrs Saleem's address as 54 Pine Road, Cricklewood and Chesham & Co, solicitors, as her representative; the person dealing with the matter was stated to be Mr E R Shulman. On 29 October 1996 the special adjudicator sent out notices of the hearing of the appeal to Chesham & Co and to Mrs Saleem. Mrs Saleem admits receiving a copy of that notice of hearing but claims that she received that copy through her solicitors and not directly from the Immigration Appellate Authority. The appeal was fixed for Tuesday, 10 February 1998. That notice contained the standard directions under rule 23 of the Asylum Appeals (Procedure) Rules 1996 (I shall refer in this judgment to those rules as “the Rules”). The appellant was required to complete the reply to directions and warned that a failure to return that form as directed could lead to the special adjudicator proceeding with the appeal, treating the party who failed to comply as having abandoned the appeal or determine the appeal without a hearing under rule 35, pursuant to rule 24 of the Rules.

On 10 April 1997 the Immigration Appellate Authority sent notice to Chesham & Co that they had failed to comply with the directions and warning that if the directions were not complied with within 21 further days the appeal might be treated as abandoned. On 6 May 1997 Mrs Saleem moved from 54 Pine Road, Cricklewood, to 207 Cricklewood Broadway. The Immigration Appellate Authority was not notified of Mrs Saleem's change of address. Mrs Saleem has deposed that she informed her solicitors of that change of address. On 12 June 1997 the Immigration Appellate Authority sent a notice of a hearing on 11 July 1997 for Mrs Saleem to show cause why her appeal should not be treated as abandoned. Two copies of that notice were sent, one to Chesham & Co and one to Mrs Saleem herself, albeit that that was addressed to 54 Pine Road.

On 11 July 1997 there was no appearance by or on behalf of Mrs Saleem. The special adjudicator, Mr Grant, made a determination in which he said:

“I am satisfied that notification of the hearing and notice as to failure to comply with directions have been served upon the parties and their representatives in accordance with the Asylum Appeals (Procedure) Rules 1996. I am further satisfied that having regard to the conduct of the first appellant and her failure to appear or otherwise prosecute her appeal or those of the other appellants, that the appeals have been abandoned: see rule...

To continue reading

Request your trial
64 cases
  • R Pavel Ivlev v Entry Clearance Officer, New York
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 9 May 2013
    ...Act and article 4 of the 2008 Order by reference to this presumption. 130 Mr Fransman referred, in particular, to R v Secretary of State for the Home Department, ex p. Saleem [2001] 1 WLR 443, CA. That case concerned the lawfulness of certain rules governing the procedure in relation to app......
  • O (K J) v Min for Justice & Refugee Applications Commissioner and Others
    • Ireland
    • High Court
    • 23 November 2001
    ...REFUGEE ACT 1996 S11 REFUGEE ACT 1996 S13 IMMIGRATION ACT 1999 S3 REFUGEE ACT 1996 S13(3)(B) R V HOME SECRETARY, EX-PARTE SALEEM 2001 1 WLR 443 ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2) TEN V THE MINISTER UNREP 31/10/2001 REFUGEE ACT 1996 S13(6) ILLEGAL IMMIGRANTS ACT 1999 S6 P (D) V......
  • R (on the application of Unison) v Lord Chancellor
    • United Kingdom
    • Supreme Court
    • 26 July 2017
    ...case. One is the constitutional right of access to justice: that is to say, access to the courts (and tribunals: R v Secretary of State for the Home Department, Ex p Saleem [2001] 1 WLR 443). The other is the rule that "specific statutory rights are not to be cut down by subordinate legisl......
  • Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), [2014] 3 SCR 31
    • Canada
    • Supreme Court (Canada)
    • 2 October 2014
    ...A.R. 132; R. v. Lord Chancellor, Ex parte Witham, [1998] Q.B. 575; R. v. Secretary of State for the Home Department, ex p. Saleem, [2000] 4 All E.R. 814; Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64, [2013] 3 S.C.R. By Rothstein J. (dissenting) OPSEU v. Ontario......
  • Request a trial to view additional results
2 books & journal articles
  • Table of Cases
    • United Kingdom
    • Wildy Simmonds & Hill Assets of Community Value. Law and Practice Contents
    • 29 August 2017
    ...(1998) 43 BMLR 155, (1998) 95(22) LSG 29, QBD 3.99 Table of Cases xxix R v Secretary of State for the Home Department, ex parte Saleem [2001] 1 WLR 443, [2000] 4 All ER 814, [2000] Imm AR 529, [2000] INLR 413, CA 6.73 R v Soneji [2005] UKHL 49, [2006] 1 AC 340, [2005] 3 WLR 303, [2005] 4 Al......
  • Appeals
    • United Kingdom
    • Wildy Simmonds & Hill Assets of Community Value. Law and Practice Contents
    • 29 August 2017
    ...142 Tribunals, Courts and Enforcement Act 2007, s 11(3). 143 See e.g. R v Secretary of State for the Home Department ex parte Saleem [2001] 1 WLR 443 at 459 per Hale LJ. 144 See para 6.84. 145 Tribunals, Courts and Enforcement Act 2007, s 11(4). 146 That is to say, the Tribunal Procedure (U......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT