England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2000] 2 All ER 148, [2000] 1 WLR 2295, [1999] INLR 433, [1999] Imm AR 594, [2000] WLR 2295, [1999] EWCA Civ 2099

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IN THE SUPREME COURT OF JUDICATURE IATRF 1999/0468/4

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL

(MR J. A. O'BRIEN QUINN QC - VICE PRESIDENT )

Royal Courts of Justice

Strand

London WC2

Friday, 20 August 1999

B e f o r e:

LORD JUSTICE PETER GIBSON

LORD JUSTICE LAWS

LORD JUSTICE SEDLEY

- - - - - -

FALILAT AKEWUSHOLA

Appellant

- v -

IMMIGRATION OFFICER, HEATHROW

Respondent

- - - - - -

(Handed Down Judgment of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

- - - - - -

MR A RIZA QC & MR A KAIHIVA (Instructed by Messrs Tayo Arowojolu, London, E1 4TR) appeared on behalf of the Appellant

MR A MCCULLOUGH (Instructed by The Treasury Solicitor, Queen Anne's Chambers, 28 Broadway, London, SW1H 9JS) appeared on behalf of the Respondent

- - - - - -

J U D G M E N T

(As approved by the Court )

- - - - - -

LORD JUSTICE SEDLEY:

History

The appellant is a young woman born, according to the birth certificate which she has produced, in the United Kingdom on the 4 ^th January 1976. On the 12 ^th April 1977 a United Kingdom passport was issued to a child of her name and age. It expired five years later. Ten years after that the appellant applied to the British High Commission in Lagos for a new passport, which was refused because of doubt about her entitlement to it.

In January 1995 the appellant presented herself at a United Kingdom port of entry with a current Nigerian passport and the expired United Kingdom passport. After prolonged consideration, on the 24 ^th June 1995, an Immigration Officer refused her leave to enter on the ground that the UK passport did not describe her and that, for the rest, she had no entry clearance. She was, however, granted temporary admission pursuant, presumably, to Schedule 2, paragraph 21(1), to the Immigration Act 1971.

The appellant appealed to an Adjudicator, Mrs. H.S. Coleman, who by a decision dated the 12 ^th June 1997 rejected her appeal. By common consent the appeal was conducted not on the question whether the passport referred to the appellant but on the question whether it was a United Kingdom passport within the meaning of the legislation. I will come in a moment to the significance of this, but it is first necessary to recount the rest of the procedural history.

The appellant, who was represented, was granted leave to appeal to the Immigration Appeal Tribunal. It sat on the 26 ^th January 1998, with a Vice-President, Mr. O’Brien Quinn QC, in the chair. By now the appellant was pregnant and the hearing date happened to be her expected date of confinement. Her representatives applied for an adjournment of the hearing, but because of an administrative error the Tribunal was not made aware of this. No representative attended on her behalf, even though no adjournment had yet been granted. The Tribunal, as it was entitled to do, proceeded in her and their absence. In a determination given on the 23 ^rd February 1998 it upheld the decision of the Adjudicator.

Some time afterwards it came to the IAT’s notice that the adjournment application had been entirely overlooked. Accordingly the Chairman of the Tribunal which had sat in January, Mr. Quinn, purported to rescind his own Tribunal’s determination on the ground that it would in all probability have granted the adjournment had the application been placed before it. He directed a fresh hearing before a differently constituted Tribunal.

The new Tribunal, chaired by the President, His Honour Judge Pearl, sat on the 17 ^th August 1998. It took as a preliminary point the question whether Mr. O’Brien Quinn had had any power to rescind his own Tribunal’s decision and order a fresh hearing. Without needing to address the question whether a full Tribunal possessed the power, it concluded that a chairman sitting alone certainly did not, and accordingly declared Mr. O’Brien Quinn’s rescinding order a nullity.

On the 27 ^th April 1999 Lord Justice Buxton enlarged the time for appealing and gave permission to appeal against both decisions of the Immigration Appeal Tribunal: that of the 23 ^rd February 1998 (“the Quinn decision”) and that of the 4 ^th September 1998 (“the Pearl decision”).

Issues

The case as presented by Mr. Alper Riza QC for the appellant and Mr. Angus McCullough for the respondent Secretary of State raises two distinct questions:

(i) Is the right of appeal in a case such as the present limited to the preliminary issue of proving the production of a current United Kingdom passport describing the bearer as a British citizen having the right of abode in the United Kingdom, or does it entitle the appellant to prove her right of abode by any admissible means?

(ii) What power, if any, does a chairman or a full tribunal possess to rescind a determination once given?

The passport question

Since the passage of the Immigration Act 1971 a number of complexities have been removed from the law governing admission as of right at ports of entry. The present provision is to be found in section 3(9) as amended by the Immigration Act 1988:

"A person seeking to enter the United Kingdom and claiming to have the right of abode there shall prove that he has that right by means of either –

(a) a United Kingdom passport describing him as a British citizen or as a citizen of the United Kingdom and Colonies having the right of abode in the United Kingdom; or

(b) a certificate of entitlement issued by or on behalf of the Government of the United Kingdom certifying that he has such a right of abode."

A United Kingdom passport is defined by section 33 of the Act, “except in so far as the context otherwise requires”, as meaning:

"a current passport issued by the Government of the United Kingdom ..."

Since the appellant’s United Kingdom passport was not current, it did not on the face of it rank as a passport for the purpose of proving the right of abode under section 3(9). The passport being the prescribed means by which the appellant was seeking entry as of right, the Immigration Officer will have had no option but to refuse her entry.

Mr. Riza offers two objections to this reasoning. The first is that the context in which the phrase “United Kingdom passport” is used in section 3(9) requires it to be given a meaning which differs from that set out in section 33(1) by omitting the requirement that it be a current passport. The second is that the appeal afforded by section 13 of the Act can have reality only if it is open to the applicant to prove her right of abode otherwise than as prescribed in section 3(9). If the second proposition is right, the first is unnecessary; if it is wrong, there is no conceivable ground for disapplying the section 33(1) definition. I turn therefore directly to the second proposition.

Section 13 of the Act provides:

"(1) Subject to the provisions of this Part of this Act, a person who is refused leave to enter the United Kingdom under this Act may appeal to an adjudicator against the decision that he requires leave or against the refusal.

.....................

(3) A person shall not be entitled to appeal, on the ground that he has a right of abode in the United Kingdom, against a decision that he requires leave to enter the United Kingdom unless he holds such a passport or certificate as is mentioned in section 3(9) above ............."

The part of sub-section (3) quoted above was introduced by the Immigration Act 1988.

If, Mr. Riza submits, the right of appeal is limited to a section 3(9) passport or certificate holder, and if in addition a passport is limited to a current passport, the right of appeal given by section 13(3) is illusory: the holder of a current passport will enter as of right, with no need of an appeal, and nobody else will have a right of appeal.

But at least two classes of potential issue can be discerned in the words “a [current] United Kingdom passport describing him as a British citizen having the right of abode in the United Kingdom”. A question may arise whether the document, though apparently current, is a forgery. Or a question may arise whether the person seeking to enter is the person described in an undoubtedly genuine and current passport. These might legitimately have been treated as grounds of appeal within section 13(3); but the Immigration Appeals (Procedure) Rules 1984, made by the Lord Chancellor under the powers conferred by section 22 of the 1971 Act, by Rule 8(3) provide:

"Where the respondent to an appeal alleges that -

(a) the appellant is not entitled to appeal

........

(ii) by reason that a passport .... on which the appellant relies is a forgery or was issued to, and relates to, a person other than the appellant

.......

the written statement referred to in paragraph (1) above [the Home Office statement of facts] shall include that allegation but it shall not be necessary for the respondent to include in the statement facts which are not relevant to the allegation. "

Rule 11(1), captioned “Determination of preliminary issues”, provides:

“Where the respondent to an appeal makes such an allegation as is mentioned in Rule 8(3), the appellant authority may, and at the request of the respondent shall, determine the validity of the allegation as a preliminary issue."

The intention, it appears, is to maintain the integrity of the process prescribed by section 3(9) for proving entitlement to enter the United Kingdom. It may be that it was not necessary to do so, since section 22(4) explicitly recognises the possibility of an appeal on the question whether a passport is forged. But the effect of Rules 8(3) and 11(1) is not to exclude issues of forgery or impersonation from the appeals system: it is to treat them as preliminary issues, with the consequence that if they are determined in the applicant’s favour the appeal will ordinarily succeed without more.

The present case was not argued as a case of forgery or impersonation. It nevertheless went before an Adjudicator, rightly, on the contention that the section 33(1) definition of a United Kingdom passport was not applicable to section 3(9) or therefore to section 13(3). The point, having gone against the applicant, was considered sufficiently substantial to merit the grant of leave to appeal. If an issue of fact arose as to whether a passport was current, this too would be an appealable question. All of this illustrates, as Mr. McCullough submits, that section 13(3) is not without content, and that Rules 8(3) and 11(1) do not starve it of content.

Mr. Riza makes the worthwhile point that the right of abode is too important a right to be without a remedy, so that an appeal confined to proof of documents rather than to proof of the facts underlying the necessary documents is inadequate. For my part I agree with his premise but not with his conclusion. The responsibility of the executive for issuing passports or certificates of entitlement, whether at home or abroad, is subject to the supervisory jurisdiction of the High Court. Such documents cannot be unlawfully or arbitrarily refused to a person who is entitled to them. It is here that Mr. Riza’s remedy can if necessary be found, together perhaps with the power to grant temporary admission – such as was granted to the applicant in the present case – so that curable deficiencies in the necessary documentation (for example a recently expired United Kingdom passport) can be put right. There is and can be no suggestion that different standards may be applied depending on the ethnicity or appearance of the intending entrant. The Secretary of State, through Mr. McCullough, readily accepts this. As to his further submission that a person whose passport has expired can be “waved through” in the exercise of some extra-statutory dispensing power, I prefer to make no comment whatever. The issue is too large, and the proper way of proceeding too evident, to justify further discussion.

In these circumstances there is in my judgment no contextual reason for disapplying the definition of a United Kingdom passport set out in section 33(1). In the present case Ms. Akewushola, lacking a current United Kingdom passport, did not have the required means of proof of a right of abode. The only evidence required for the appeal was the expired passport itself, and both the Adjudicator and the Quinn Tribunal were correct in holding that it failed to meet the requirements of the Act.

I would therefore dismiss the appeal against the determination of the Immigration Appeal Tribunal given on the 23 ^rd February 1998 on the preliminary issue.

The procedure question

Although, as Mr. Riza came to acknowledge, a critique of what followed the Quinn Tribunal’s decision cannot now help him if that decision was right, we have heard argument from both sides upon it since our view may be of assistance to the Immigration Appellate Authority in the future.

The Pearl Tribunal decided that it had no jurisdiction on the narrow ground that Mr. Quinn sitting alone had no power to undo his own Tribunal’s decision. This was plainly right. The powers of chairmen are exhaustively spelt out in Rule 42 of the Immigration Appeals (Procedure) Rules 1984. They relate to stays on removal pending appeal; bail; leave to appeal; and

"(c) any function conferred on the Tribunal to

(i) determine a preliminary issue, or to make a determination in consequence thereof, pursuant to Rule 11 above;

(ii) remit an appeal to an Adjudicator pursuant to Rule 21(1) above; or

(iii) require the attendance of witnesses at the hearing of an appeal, pursuant to Rule 27 above."

Even though paragraph (c)(i) would have enabled Mr. O’Brien Quinn to decide the appeal from the Adjudicator by himself (something which, though apparently lawful, I would for my part not have thought desirable), the Rule gives a chairman no power in any circumstances to rescind a decision of his own or another Tribunal.

But there is a larger issue: can even a full Tribunal rescind its own or another Tribunal’s decision? I can find no explicit power to do so in the Rules, and I see a number of reasons why no such power should be inferred or implied.

Rule 38 provides:

"Any irregularity resulting from failure to comply with these Rules before an appellate authority has reached its decision shall not by itself render the proceedings void, but the appellate authority may, and shall if it considers that any person may have been prejudiced, take such steps as it thinks fit before reaching its decision to cure the irregularity, whether by amendment of any document, the giving of any notice or otherwise."

The limit in point of time of this power to cure irregularities is thus the point at which a decision is reached. From then on the maximum power must be to correct accidental errors which do not substantively affect the rights of the parties or the decision arrived at. Mr. Riza has drawn our attention to a passage at page 262 of the current (7 ^th) edition of Wade and Forsyth on Administrative Law. Having instanced cases where powers of review are expressly conferred on administrative tribunals, the authors say:

"Even when such powers are not conferred, it is possible that statutory tribunals would have power, as has the High Court, to correct accidental mistakes; to set aside judgments obtained by fraud; and to review a decision where facts subsequently discovered have revealed a miscarriage of justice."

The footnote to this sentence cites the slip rule (Order 20 Rule 11 of the Rules of the Supreme Court 1965) and the decision of the Privy Council in Hip Foong Hong v. H. Neotia and Co. [1918] AC 888, a case concerning the power of His Britannic Majesty’s Supreme Court for China, sitting at Shanghai, to order a new trial for the admission of fresh evidence in a dispute between two firms of opium merchants encountering difficulties with China’s attempts to ban importation of the drug. For my part I do not think that, slips apart, a statutory tribunal – in contrast to a superior court - ordinarily possesses any inherent power to rescind or review its own decisions. Except where the High Court’s jurisdiction is unequivocally excluded by privative legislation, it is there that the power of correction resides.

This is particularly so where, as is the case with the Immigration Appeals (Procedure) Rules 1984, repeated provision is made for the circumstances in which a tribunal can decide for itself what steps to take. Rule 28 sets minimum standards for the conduct of proceedings and gives the appellate authority, for the rest, express power to “conduct the proceedings in such manner as it considers appropriate in the circumstances”. Rule 34(2) and (3) lay down specific provisions for conducting a hearing in the absence of a party. Rule 37, captioned “Miscellaneous powers”, gives an appellate authority powers to postpone, give directions, adjudicate by consent, adjourn and “subject to the provisions of the Act and these Rules, regulate its own procedure”. Although there may be further powers which arise by necessary implication from those spelt out in the Rules – for example, to make provision for interpreters – it is not feasible to deduce from them the interstitial existence of an internal power of rescission or review. If something has gone procedurally wrong which is capable of having affected the outcome, it is to the High Court – if necessary on a consensual application – that recourse must be had.

I say “which is capable of having affected to the outcome” because it is strongly arguable, although not necessary to decide, that in the present case an application to the High Court at the point at which Mr. O’Brien Quinn purported to set aside his Tribunal’s decision would not have succeeded. First, no response having been received to the application for an adjournment, there was on the face of it no reason why the applicant’s representatives should not have attended the hearing. Secondly, had they done so, there would have been no need for the applicant to attend, since the facts were straightforward and undisputed and the issue purely one of law. Mr. O’Brien Quinn took a different view of what his Tribunal would probably have done had it appreciated the situation; but the difference is now history.

It follows logically that the Pearl Tribunal had no more power to declare Mr. O’Brien Quinn’s decision a nullity than Mr. O’Brien Quinn (or for that matter the Quinn Tribunal) had to rescind the original decision. But nothing now turns on this. In any case, the Pearl Tribunal, assembled to conduct a purported de novo hearing, had to do something about the situation with which it was presented. Without embarking on the troubled question whether a purported decision plainly made without power can be ignored, or must first be quashed by the High Court, it is sufficient to say that the Pearl Tribunal was right in the event, both for the reason it gave and for the larger reason which I have given, to regard itself as without jurisdiction. This is so even if its purported declaration that Mr. O’Brien Quinn’s decision was void itself had no visible means of support in law.

I would therefore dismiss the appeal on this issue too.

LORD JUSTICE LAWS: I agree.

LORD JUSTICE PETER GIBSON: I also agree.

Order: Appeal be dismissed with costs unless the certificate of legal aid is lodged with the court by 4pm on Monday, 23 August 1999 and, contingent on that, legal aid taxation of the appellant's costs; application for permission to appeal to the House of Lords refused. ( This order does not form part of the approved judgment )