Secretary of State for the Home Department (Appellant v Shahib Al-Mehdawi (Respondent
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE TAYLOR,LORD JUSTICE NICHOLLS,LORD JUSTICE O'CONNOR |
| Judgment Date | 23 November 1989 |
| Judgment citation (vLex) | [1988] EWCA Civ J1109-3 |
| Docket Number | 88/0922 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 November 1989 |
[1988] EWCA Civ J1109-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
(MR. JUSTICE MACPHERSON)
Royal Courts of Justice,
Lord Justice O'Connor
Lord Justice Nicholls
and
Lord Justice Taylor
88/0922
1605/87
SIR CHARLES FLETCHER-COOKE Q.C. and MR. G. WARR (instructed by Messrs. Sturtivant & Co., London, W1M) appeared for the Respondent (Appellant).
MR. J. LAWS and MR. D. PANNICK (instructed by the Treasury Solicitors) appeared for the Appellant (Respondent).
This is an appeal by the Secretary of State for the Home Office from a decision of Macpherson J. on 23rd November 1987. The learned judge granted an order of certiorari to quash the determination of an adjudicator dismissing an appeal by Shahib Al-Mehdawi (the respondent) against the Secretary of State's decision to deport him.
The respondent was born in Iraq on 29th April 1956. In August 1977, aged 21, he arrived in the UK as a visitor. Between 1977 and 1984, his leave to remain was extended from time to time to enable him as a student to pursue various training courses. He was a conspicuously unsuccessful student and eventually on 4th May 1984, he was refused a further extension of time. Despite that refusal, the respondent failed to leave. Accordingly, on 12th March 1985, the Secretary of State gave notice of his decision to deport the respondent pursuant to section 3(5)(a) of the Immigration Act 1971. The respondent instructed solicitors, Bowman Ziadie & Co. They lodged a notice of appeal on 28th March 1985. On the same day, they wrote to the respondent at his address in Edinburgh to inform him of the step they had taken.
On 23rd September, Bowman Ziadie wrote to him again to tell him the hearing before an adjudicator was fixed for 21st November. However, most unfortunately and negligently, their letter was sent, not to the respondent's Edinburgh address, but to his former address in Birmingham. The letter did not reach him. It is common ground (a) that he never knew of the hearing before it was so far pasted that he not only missed attending, but was too late to appeal, and (b) that Bowman Ziadie took no further steps after their misdirected letter and before the hearing. So, on 21st November, neither the respondent nor anyone from Bowman Ziadie appeared before the adjudicator. A representative of the Home Office was there and invited the adjudicator to determine the appeal on the available documents. The adjudicator did so and dismissed the appeal. On 5th December, he sent a copy of his decision to Bowman Ziadie. They wrote to the respondent telling him that any further appeal had to be lodged by 22nd December. But again, their letter was wrongly addressed to Birmingham, so no appeal was lodged.
On 28th April 1986, the Secretary of State signed a deportation order directing the respondent's removal to Iraq. On 23rd May, he was arrested and detained in Perth prison. There followed extended representations and negotiations involving the Home Office and, on the respondent's behalf, a second firm of solicitors in Scotland, and an MP. Eventually, via the respondent's third and present firm of solicitors, an application was made for judicial review on 5th February 1987. The case for the respondent (the applicant before Macpherson J.) was that owing to the negligence of his solicitors, he had been deprived of an oral hearing of his appeal to which he was entitled by the rules of natural justice and accordingly the decision should be quashed. He relied upon the decision of this court in R. v. Diggines, Ex parte Rahmani (1985) 1 Q.B. 1109. Before Macpherson J., Mr. Pannick, for the Secretary of State, accepted that unless he could show fault on the part of the respondent personally, the learned judge was bound by this court's decision in Rahmani and should grant relief. The learned judge was not prepared to find the respondent had been at fault. Accordingly, he granted certiorari.
On this appeal, Mr. Laws' first submission is that this court is not bound by its decision in Rahmani in view of the ultimate ruling when the case went to the House of Lords. There it was held that the issue determined by me at first instance and by the Court of Appeal thereafter did not arise on a true view of the relevant facts and law.
Shortly, the facts of Rahmani's case were as follows. The applicant had been refused leave for herself and her children to remain in the United Kingdom. She appealed to an adjudicator. She was represented by UKIAS, but by the date of the hearing, they were unable to contact her since although they had been given her new address, they had failed to record it. By letter to the adjudicator, they said they had no instructions and invited him "to decide the case in such manner as he may deem proper." In purported exercise of the power in rule 12 of the Immigration Appeals (Procedure) Rules 1972, the adjudicator dismissed the appeal without a hearing. At first instance, I held that there had been a breach of the rules of natural justice in that the applicant had been denied a hearing. Although that breach was due to the negligence of her own advisers, she was nevertheless entitled to relief. The Court of Appeal upheld the decision for the same reasons. Neither before me nor the Court of Appeal was any criticism made of the adjudicator. However, in the House of Lords, this important issue of principle was held not to have arisen because the true and simple ground for granting the applicant relief was that the adjudicator should not have determined the case under rule 12, there being nothing to justify a finding under sub-rule (c) of that rule that no person was authorised to represent the applicant at the hearing.
In these circumstances, Mr. Laws contends that the true ratio of the case was the simple one propounded in the House of Lords. The more general point of principle decided below did not arise for decision in Rahmani's case. He submits the case must be considered as one continuous piece of litigation. Therefore, although the views expressed upon the issue of principle in this court are of high persuasive value, they cannot be regarded as the ratio of the case and thus binding, since they were unnecessary to its decision.
He referred to Young v. Bristol Aeroplane Co. (1944) K.B. 719, the leading authority on the principle of stare decisis in this court. At page 729, Lord Greene M.R. stated the principle thus: "On a careful examination of the whole of the matter we have come to the clear conclusion that this court is bound to follow previous decisions of its own as well as those of courts of co-ordinate jurisdiction. The only exceptions to this rule (two of them apparent only) are those already mentioned which for convenience we here summarise: (1) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow. (2) The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords. (3) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam."
Mr. Laws submits that those expectations are not exhaustive. In particular, it would seem that Lord Greene's principles were related to final decisions of the Court of Appeal. They may well be inapt where the House of Lords, in giving the final decision of a case, expressly indicates that on the true facts, the issue resolved by the Court of Appeal did not require to be decided. Alternatively, such a case may be akin to Lord Greene's exception (2). In Rahmani the House of Lords went further than simply to say the issue below did not arise for decision. Lord Scarman, with whose speech all the other Law Lords agreed, said at page 478: "However, the parties and the two courts below proceeded upon the basis that rule 12 did apply. At the outset of the hearing and before your Lordships it became obvious that there must be a serious doubt as to the applicability of rule 12 in this case. Your Lordships raised the point with counsel for the adjudicator who very fairly said at once that, if your Lordships should be disposed to the view that rule 12 does not apply in this case, he would not argue for the contrary view. He had come to argue the question of principle. Counsel for the immigrants was equally eager to argue the question of principle but left the matter in your Lordships' hands. Thereupon and with the assistance of counsel, your Lordships examined the terms of the rule and the facts of the case and considered in the circumstances the rule did not apply.
"Your Lordships have not, therefore, considered, nor have they heard arguments upon, the point of principle which was the ground of decision in both courts below. Accordingly I express no opinion on the point. I must not be understood to have indicated even a provisional view upon the soundness or otherwise of the alleged principle. Indeed it would be dangerous, in my view, to discuss the point save in a case where the circumstances and the facts require it to be decided."
It would be stange indeed if despite those final words, the decision of this court is to be regarded as binding authority on the point of principle.
Sir 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 of the transcript: "The...
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