Secretary of State for the Home Department v Olusegum Omishore
| Jurisdiction | England & Wales |
| Judgment Date | 17 August 1990 |
| Date | 17 August 1990 |
| Court | Immigration Appeals Tribunal |
Immigration Appeals Tribunal
Professor D C Jackson (Vice-President) G W Farmer Esq (Vice-President), A A Lloyd Esq JP
D Wilmott for the appellant
The respondent did not appear and was not represented
Cases referred to in the determination:
R v Immigration Appeal Tribunal ex parte Lila [1978] Imm AR 50.
Marspan Tusin v Secretary of State for the Home Department [1984] Imm AR 42.
Joseph Agyekum v Secretary of State for the Home Department [1987] Imm AR 23.
Secretary of State for the Home Department v Said Ken'aan [1990] Imm AR 544.
MensahUNK (unreported, 20 September 1976).
Sabri (2645) (unreported).
Movahendian (4683) (unreported).
Boakye (4783) (unreported).
Kamal (6498) (unreported).
Removal directions on deportation appeal against destination specified in removal directions whether to ground such an appeal an appellant had to specify another country that would accept him. Immigration Act 1971 ss. 17, 22: Immigration Appeals (Procedure) Rules 1984 rr. 4(1), 6(3), 8(3), 9, 11(1), 12.
Appeal against destination specified in removal directions assertion by Secretary of State that there was no valid appeal because no alternative destination put forward by appellant whether that should be determined as a preliminary issue. Immigration Appeals (Procedure) Rules 1984 r. 8(3).
Immigration Appeal Tribunal jurisdiction whether an appeal would lie to the Tribunal against an adjudicator's decision that there was or was not an appeal before him the relevance of ex parte Lila the distinction between a determination thereon and a determination therein. Immigration Act, 1971 ss. 19(1), 20(1).
The appellant was an overstayer who had gone to ground. In consequence, when the Secretary of State decided to initiate deportation proceedings against him, the appellant remained unaware of that decision. In the fullness of time a deportation order was signed. When the appellant subsequently became aware of that order, he appealed. His appeal could then only be against the removal directions, in this case to Nigeria. He did not specify any other country that would receive him.
The Secretary of State contended before the Chief Adjudicator that there was no valid appeal because the appellant had not complied with the statutory requirement, in a destination appeal, for the appellant to specify an alternative destination. The Secretary of State submitted that that question should be determined as a preliminary issue (with for example, the explanatory statement being limited to that question). In the light of conflicting determinations by the Tribunal, the Chief Adjudicator ruled that he should hear the case on its merits. He did so and dismissed the appeal.
The Secretary of State appealed to the Tribunal maintaining that the issue should have been determined as a preliminary issue. The Tribunal reviewed ancillary matters.
Held:
1. In an appeal under section 17(l)(b) of the 1971 Act, (a destination appeal) the appellant had to specify another country to which he should be removed.
2. If an appellant did not specify another country in his notice of appeal, the Secretary of State might challenge the validity of that appeal and that should be determined as a preliminary issue.
3. A determination by an adjudicator on a preliminary issue was a determination within section 20(1) of the 1971 Act and therefore might be appealed to the Tribunal: the distinction in ex parte Lila between a determination thereon and a determination therein applied.
4. A decision by an adjudicator that he had no jurisdiction to hear an appeal was likewise appealable to the Tribunal.
Determination
The central issue in this appeal is whether an appeal against directions for removal following the making of a deportation order has as a prerequisite the specification of a different country to that which is notified to the appellant in the directions. There are two further connected issuesfirst, whether if the specification of a country by an appellant is a prerequisite, the matter may be treated as a preliminary issue and, secondly, whether an appeal will lie to the Tribunal from an adjudicator's decision that there is or is not an appeal before him.
The proceedings to date
It appears that the appellant was admitted to the United Kingdom on 29 March 1977 for 7 days as a visitor and after the expiry of that 7 days, he remained without leave. On some unspecified date, the Secretary of State decided to make a deportation order against the respondent but at that time the Secretary of State did not know the respondent's whereabouts or place of abode. Because of this lack of knowledge there was no obligation on the Secretary of State to serve notice of the decision on the respondent (Immigration Appeals (Notices) Regulations 1984 reg 3 (4)).
One 25 January 1983 a deportation order was made in respect of the respondent and direction was given for removal to Nigeria. Notice was served on 4 May 1989. On 8 May a notice of appeal was lodged naming the Southwark African Organisation as the respondent's representative. That notice of appeal listed 9 grounds of appeal, but none go to the country to which the appellant should be removed. Further there was no indication either on the form or through any written statement of an objection to the removal to Nigeriaalthough the form provides for such an objection to be stated.
In the circumstances appeal was open to Mr Omishore only against the directions. The Home Office lodged an explanatory statement under rule 8 (3)(a)(l) of the Immigration Appeals (Procedure) Rules 1984, asserting as a preliminary issue that the then appellant was not entitled to appeal even against the directions.
The explanatory statement concluded:
The Secretary of State respectfully submits that as the appellant's appeal to the Adjudicator is by virtue of Section 17(l)(b) of the Immigration Act 1971, for an appeal under that provision to be properly laid, the appellant must specify a country different from that to which it is proposed to remove him. (The provisions of Rules 9(2) and 12(d) of the Immigration Appeals (Procedure) Rules 1984 refer.) As the appellant has failed to provide any alternative country to Nigeria to which he could be removed, the Secretary of State further submits that no valid appeal has been lodged, and the appellate authority therefore has no appeal before it.
The Chief Adjudicator promulgated his decision on the preliminary issue in January 1990. The Chief Adjudicator, having examined decisions of the Tribunal, concluded that these were in conflict and that in those circumstances he held that he should give Mr Omishore the...
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