Secretary of State for the Home Department v Zengin
| Jurisdiction | England & Wales |
| Judgment Date | 08 June 2000 |
| Date | 08 June 2000 |
| Court | Immigration Appeals Tribunal |
Immigration Appeal Tribunal
Mr Justice Collins (President) P R Moulden Esq, G Warr Esq
M Fordham for the Secretary of State
M Henderson for the respondent
Cases referred to in the determination:
Salter Rex & Co v GhoshELRUNK [1971] 2 QB 597: [1971] 2 All ER 865.
Taj Bibi v Secretary of State for the Home Department [1977] Imm AR 27.
Hussein Kara v Secretary of State for the Home Department [1995] Imm AR 584.
Falilat Akewushola v Secretary of State for the Home DepartmentUNK [2000] 2 All ER 148: [1999] Imm AR 594.
R v Immigration Appeal Tribunal ex parte Janet Wanyoike [2000] Imm AR 389.
Immigration Appeal Tribunal whether the Tribunal had power to remit a case for re-hearing by an adjudicator the ambit of the power. Immigration Act 1971 s. 20: Asylum Appeals (Procedure) Rules 1996 r. 17(2)
The respondent had been refused asylum by the Secretary of State. His appeal was allowed by a special adjudicator. The Secretary of State sought leave to appeal to the Tribunal. A chairman sitting alone remitted the appeal for hearing de novo by a special adjudicator.
The solicitors for the respondent challenged that decision.
The Tribunal considered the ambit of its power to remit a case.
Held
1. The Tribunal had power to remit a case for re-hearing by an adjudicator, pursuant to section 20 of the 1971 Act.
2. If the order is made by a chairman sitting alone it is an interlocutory order that may be varied or set aside.
3. If the order is made by the Tribunal as the determination of the appeal at a hearing it is final and cannot be set aside or varied. An appeal would lie to the Court of Appeal.
Determination
1. On 20 October 1998 the respondent's claim for asylum was refused. He appealed to a special adjudicator who allowed his appeal on 27 August 1999. The Secretary of State was granted leave to appeal and on 6 March 2000 the appeal was listed for mention before a chairman (Mr Fox). The respondent was represented by Howe & Co, solicitors, who wrote to the Tribunal asking that the appeal be listed for hearing and stating that they did not intend to appear at the for mention hearing. This was a perfectly proper course to adopt since there was no need to incur unnecessary costs and the Tribunal was informed that the respondent was intending to resist the appeal. The respondent attended in person on 6 March. Mr Fox took the view that the special adjudicator's decision was flawed and that the case should be remitted to be heard afresh by a special adjudicator other than Mr Brittain who had heard the original appeal. He persuaded the respondent to agree and made an order accordingly pursuant to rule 17(2) of the Asylum Appeals (Procedure) Rules 1996 (the 1996 Rules).
2. When Howe & Co discovered what had happened, they were unsurprisingly upset. They wrote complaining that they had not expected that the chairman would do other than fix a hearing date and should not have acted as he did without the respondent being represented. They applied to the Tribunal to set aside the order made by Mr Fox and to hear and determine the appeal. They wished to argue that the decision of the special adjudicator should be upheld and the appellant's appeal should be dismissed. When the President considered their letter, it seemed that the Tribunal would have to consider whether, in the light of Akewushola v Secretary of State for the Home DepartmentUNK [2000] 2 All ER 148 and R v Immigration Appeal Tribunal ex parte Wanyoike [2000] Imm AR 389, it had jurisdiction to set aside Mr Fox's order. That would involve a general consideration of the Tribunal's power to remit appeals for rehearing by adjudicators. The President wrote to both sides indicating that these issues would have to be considered.
3. Unfortunately, when the application was listed before the Tribunal on 10 May 2000 neither party seemed to have appreciated the underlying problems. Counsel then appearing for the respondent told us that he was prepared to concede that the Tribunal had no power to set aside Mr Fox's order. We pointed out that that was not necessarily so and that there were important and problematical issues to be decided since the statutory language relating to remittals was far from clear. Neither party had appreciated this. We therefore adjourned the application until 8 June 2000 and encouraged the appellant to contact the Treasury Solicitor with a view to counsel being instructed.
4. At the hearing on 8 June 2000 the appellant and respondent were represented by counsel. We are grateful to both of them. However, we regret to say that we did not in the end receive much assistance from the arguments of either counsel. Mr Henderson simply took up the arguments suggested by us at the hearing on 10 May 2000 and, with considerable regret, submitted that they meant the end of remittals as practised by the Tribunal since at least 1976. Mr Fordham for his part endeavoured to uphold the power of remittal through arguments which we were wholly unable to accept. Essentially, he argued that the word appeal has two different meanings when used in the same paragraph of the relevant rules.
5. The first question we must determine is whether the Tribunal has power to remit appeals to be heard afresh (we are prepared to eschew the latinism de novo) by an adjudicator. The Tribunal has only such powers as are given to it by the statutes and rules which govern its jurisdiction and procedure. It has no inherent powers save those which enable it to prevent its processes being abused: without these it would not function properly as a Tribunal. In particular, it has no power to deal with appeals in a way which is not permitted by the governing statutes or rules. It seems to us to be axiomatic that an appeal tribunal ought to have the power to remit a case to be heard again or, in effect, to order a new trial. The paradigm case in which such a power is required is perhaps where the adjudicator has properly proceeded in the absence of the appellant but it is clear to the Tribunal that there was a good explanation for his failure to attend. For example, he may have been genuinely ill or, through no fault of him or his representatives, he had not been notified of the hearing. The absence of a power to order a rehearing in such circumstances would result in an innocent appellant losing the appeal rights granted by the statute.
6. The difficulty lies in the language Parliament has chosen to use to deal with remittals. The Tribunal's general powers are set out in section 20 of the Immigration Act 1971, which...
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R (Secretary of State for the Home Department) v Immigration Appeal Tribunal
...jurisdiction to set aside Mr Fox's order and that the appeal should be listed for hearing in the normal way as soon as possible. (see [2000] Imm AR 518). 4 The relief sought by the Claimant in the present proceedings is limited to declaratory relief. No quashing order is sought, because the......