England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH
DIVISION (ADMINISTRATIVE COURT)
(HIS HONOUR JUDGE WILKIE)

		Royal Courts of Justice Strand London WC2A 2LL Thursday 13 June 2002

1. LORD JUSTICE CLARKE:I will ask Lord Justice Laws to give the first judgment.
2. LORD JUSTICE LAWS: This is a renewed application for permission to appeal against a decision of His Honour Judge Wilkie sitting as a judge of the Administrative Court, given on 15 March 2002, when he refused the applicant permission to seek judicial review to challenge the validity of the Immigration and Asylum Appeals (Procedure) (Amendment) Rules 2001 made by the Lord Chancellor. I refused permission to appeal on the papers on 1 May 2002.
3. Paragraph 3 of Schedule 4 of the Immigration and Asylum Act 1999 provides:

"The Lord Chancellor may make rules-

(a) for regulating the exercise of the rights of appeal conferred by Part IV;

(b) for prescribing the practice and procedure to be followed on or in connection with appeals under Part IV, including the mode and burden of proof and admissibility of evidence on such an appeal; and

(c) for other matters preliminary or incidental or arising out of such appeals, including proof of the decisions of the adjudicator of the Immigration Appeal Tribunal."

4. In exercise of this and other powers, the Lord Chancellor made the Immigration and Asylum Appeals (Procedure) (Amendment) Rules 2001. By Rule 4, there was substituted a new paragraph 15 of the Immigration and Asylum Appeals (Procedure) Rules 2000. The new paragraph 15, which is the distinct subject of this proposed challenge, provides:

"1. Except where paragraph (2) applies, written notice of the adjudicator's determination shall be sent to the parties and the appellant's representative (if he has one).

(2) Where a determination is, in whole or in part, in relation to a claim for asylum and

(a) the claim has been certified by the Secretary of State under paragraph 9(1) of Schedule 4 to the 1999 Act,

(b) the adjudicator has agreed under paragraph 9(2) of Schedule 4 to the 1999 Act, that it is a claim to which paragraph 9 of that Schedule applies, and

(c) the adjudicator has dismissed the appeal,

written notice of the adjudicator's determination shall be sent to the Secretary of State who shall arrange for it to be sent to, or served personally on, the other parties and the appellant's representative (if he has one).

(3) Where paragraph (2) applies, the Secretary of State shall notify the adjudicator whether the written notice was sent to, or personally served on, the appellant and the date on which this was done."

5. It will be seen that subparagraphs (a), (b) and (c) of paragraph (2) of the new paragraph 15 are cumulative. The effect is that in cases where the adjudicator has dismissed an asylum appeal, and where the Secretary of State has issued a certificate with which the adjudicator has agreed, there is no further avenue of appeal to the Immigration Appeal Tribunal, the adjudicator's determination is to be sent to the Secretary of State who in turn sends it to or serves it on the unsuccessful appellant. In the previous rules in such cases (indeed in all cases) the determination was served on all parties alike by the appellate authority. The class of appeal in question for present purposes is that of appeals under section 69 of the 1999 Act: that is, appeals against refusal of leave to enter the United Kingdom on the ground that the appellant's removal from the United Kingdom would be contrary to the 1951 Refugee Convention. In the present case the appellant has launched such an appeal, having been refused leave to enter by the Secretary of State who also issued a statutory certificate under paragraph 9 of schedule 4 to the 1999 Act. The applicant's appeal has not yet been heard. Depending on its outcome, the appeal is one to which the new rule 15 potentially applies.
6. Appeals covered by the new rule would include a case in which the grounds of appeal also alleged potential future violation of the appellant's rights under the European Convention on Human Rights. In such a case, even though there was a statutory certificate in relation to the asylum element in the appeal, further appeal to the Immigration Appeal Tribunal would not be barred vis-à-vis the ECHR ground.
7. There are also certain other avenues by which an appellant may have the adjudicator's decision reconsidered, even though it is a determination falling within the new rule 15(2). There is no doubt as to the purpose of the rule change. It was described by His Honour Judge Wilkie thus:

"It is for the purpose of assisting with the removal of failed asylum seekers; the perception of the Lord Chancellor and the Home Secretary apparently being that there is a problem where appeals have been unsuccessful and have been notified to unsuccessful applicants for asylum, that they disappear or abscond thereby making efforts to detain and remove them from the country more difficult.

The purpose of the changes is evidenced in a letter dated 18 December last from an official in the Lord Chancellor's department to a representative of the Immigration Law Practitioners Association, and further evidenced in an extract from the Home Secretary's press release which was quoted on 29 January of this year in the House of Lords debate on the rules by the Liberal Democrat spokesman saying that it is 'to prevent asylum seekers from having a head start in knowing what the decision is, and if it is unfavourable being able to disappear', and that it was with a view to contributing with 'getting a grip of the removals process and will ensure that those who having exhausted the appeals system and have to right to remain actually do leave the country'."

8. In my judgment this stated purpose cannot of itself render the rule ultra vires the enabling statutory power. The purpose facilitates the proper execution of the decision.
9. The proposed basis of the challenge has been somewhat refined since it was before His Honour Judge Wilkie. Essentially two points are articulated in Mr Nicol's skeleton argument for the appellant and have been relied on before us. It is put thus in paragraph 4 of the written argument:

"(a) They [the new rules] are a radical and unique departure from fair procedures in contested litigation which compromise the independence and impartiality of the immigration appellate process and/or create an appearance of lack of independence or partiality within the system and/or

(b) In the absence of attendant procedural safeguards, service of decisions by the Secretary of State on the appellant with a view to facilitating removal interferes with fundamental rights namely the right of access to effective legal representation, it impairs access to the court and/or creates a real risk of removal contrary to the Refugee and/or Human Rights Conventions."

10. I turn to the first point. At the outset of his submissions, Mr Nicol put it on the footing of an alleged actual bias. He argued, correctly so far as it goes, that the appeal process before an adjudicator is not completed at least until service or notification of the decision has been made. Therefore, he submits, the process is compromised by the fact of service first on the Secretary of State who then serves on the appellant.
11. Mr Nicol relies on a decision of Harrison J in R v Special Adjudicator ex parte Bashir [2002] Imm AR 1, decided on 6 December 1999. In that case the adjudicator had indicated orally at the end of the relevant hearing that he would allow the appeal, but when he came to write his determination he thought otherwise and in the determination he effectively dismissed the appeal. It was argued before Harrison J that the adjudicator was functus officio after he had made the oral pronouncement. Harrison J held that that was wrong and the process was not complete until after the determination had been served or notified.
12. I have no difficulty in accepting that in a proper legal sense the determination is not complete until after service, but to seek to derive from that fact a proposition that the adjudicator's substantive determination is flawed by bias seems to be a hopeless enterprise. Mr Nicol says that the process is not impartial, even if the adjudicator was not actually biased. I find that very difficult to understand. At all events I am clear that there is nothing amounting to actual bias in this case.
13. The substantive point in relation to Mr Nicol's first ground is one of alleged apparent bias. If the rule infected the appellate system with apparent bias, as that conception is objectively understood through the authorities, that would at least be an arguable ground for challenge. As to the articulation as to what is meant by bias or apparent bias, in our modern law, taking account of the Strasbourg jurisprudence, I need only refer to a very short passage in the judgment of Lord Phillips, MR in Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 at page 727A, where he said:

"The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased."

14. I do not consider it arguable that the adjudicator is impressed or infected with bias in the sense explained in Medicaments by the new rule.
15. Mr Sales for the Lord Chancellor and the Secretary of State has put in a skeleton argument, from which I will take this short passage on page 7:

"(i) [The method of service] has no impact upon the substance of any determination made by an Adjudicator or Tribunal. The amendments under the 2001 Rules apply to all cases within their ambit: their application is not a matter within the discretion of the Adjudicator and/or the Immigration Appeal Tribunal;

(ii) the decision-maker (whether it be the Adjudicator or the IAT) is not involved with the notification process, and was not so involved prior to the 2001 Rules. The decision-maker's function is complete once the decision has been taken."

16. That last sentence seems to me to be correct. I emphasise it because it is in no way inconsistent with the proposition (which I have already accepted) that the appellate process is not complete until after service.

"(iii) In fact, the administrative process whereby decisions are sent out has been (and remains) a function undertaken by Court Service employees who work for the Immigration appellate Authority.

(iv) further, the method of notification introduced by the 2001 Rules is consistent with the method set out in the 2000 Rules for giving notice of appeal. In practice an appellant is required to give notice of appeal by delivering that notice to the Home Office (see 2000 Rules, Rule 8 - the address specified in the notice of decision is, for these purposes, the Home Office). To this extent the provisions of the 2001 Rules are not 'unprecedented' as is suggested by Mr Bubaker."

17. Mr Nicol says of this last point under (iv) that there is no analogy at all. The service of a decision, after it has been arrived at, is something very different from giving notice of appeal. In my view that is right, as far as it goes, but the point being made in the skeleton is only that the provisions of the 2001 Rules are not unprecedented.
18. The point of substance is that the decision-maker is not himself involved with the notification process. It is important to have in mind, as with respect Lord Phillips made clear in Medicaments, that the test requires notional appeal to the views of a fair minded and informed observer. Such an observer knows perfectly well that the adjudicator's determination is not itself touched in any way by the method of service.
19. His Honour Judge Wilkie referred to certain statements from the Law Society, the General Secretary of the Immigration Law Practitioners Association and the Council of Tribunals, the latter being a statutory consultee for the purpose of making the rules. They have all expressed concern as to the perceptions which they thought might arise in consequence of the new rules. The judge expressed the view, however, that none of those correspondents, considered for their own part (as fair minded and informed observers), that the rule gave rise to a real danger of bias. I am not sure that that is a proper reading of the letters which I do not propose to set out. It is however clear to me that there is nothing of any substance in the suggestion of apparent bias in this case.
20. The second point concerns access to the courts, or further access to the appellate authorities. I note the details given in paragraph 26 of Mr Nicol's helpful skeleton where it is said:

"It is not the case that the four categories of decision to which the amending rules apply are ones where all rights of challenge have been exhausted. Thus:

a. An application can be made to the Chief Adjudicator to review the decision of an adjudicator who has dismissed a certified appeal and upheld the certificate

b. An application can be made to the Tribunal to review a decision refusing leave to appeal.

c. The decision to refuse leave to appeal or to uphold a certificated refusal of asylum can also be the subject of judicial review which is not entirely distinct from the appellate process since its availability is necessary (and has proved vital) for the proper supervision of those tribunals in respect of matters of law so that removals do not take place in breach of the Refugee or Human Rights Conventions.

d. A claimant may also have a human rights appeal that has not been certified and in respect of which there is a right of appeal to the IAT."

21. Those four points are, as I understand Mr Sales to accept, factually correct. As regards the last point, the position in relation to a concurrent human rights appeal being run in tandem with a certified asylum appeal, is vouched by this court's decision in Zenovics v The SSHD.
22. There is no doubt that nothing could be more elementary than that access to the Queen's Courts is a fundamental constitutional right. Equally, there is no doubt, and Mr Sales has accepted in terms, that the Secretary of State must not act inconsistently with the proper enjoyment of legal rights that exist in the hands of appellants. But it seems to me that the question with which we are concerned in this application is, and is only, whether the new rule is ultra vires the enabling statute.
23. Mr Nicol presses much evidence as to the difficulties which he says will arise, or at the very least may arise, for appellants whose appeals before the adjudicator have been unsuccessful, if the new rules are put into effect. There is some material to suggest that the Secretary of State anticipates, at least in some cases, no more than an interval of some three days between personal service of the adjudicator's decision and the appellant's removal.
24. The first of the four rights set out in paragraph 26 of the Mr Nicol's skeleton argument allows the application there mentioned to be made within 10 days of the relevant decision. Clearly, if the Secretary of State knew or believed that an unsuccessful appellant proposed to exercise that right, it would be wrong for him to be removed before the time for doing it expired.
25. There is a statement from Mr Symes, of the Refugee Legal Centre, giving details as to the difficulties which may be put in the way of applicants served under the new rule. I do not propose to go into the length of the difficulties that are canvassed before us in the evidence, because it seems to me that they do not touch the vires of the rule. It is plain, and indeed not contested, that the new rules can be operated perfectly consistently with all statutory and common law rights enjoyed by any effective applicant. The possibility (theoretical one hopes) that it may be exercised inconsistently with such rights does not touch the validity of the rule itself. The new rule does not require an applicant to be detained. For that reason, it seems to me that this ground is misconceived.
26. I emphasise that what may happen hereafter in practice would have to be considered as and when concrete complaints arise. The important point is that the Secretary of State must not, and plainly does not intend to, act inconsistently with any proper legal rights which an appellant enjoys.
27. I would refer to this short passage as to the factual position which is set out at page 12 of Mr Sales' skeleton, but derived from what has been said in Parliament 12:

"In cases where the appellant is detained following delivery or service of the decision, the appellant will continue to have access to legal advice. At present contact details for the Immigration Advisory Service and for the Refugee Legal Centre are available at all detention facilities. This will continue to be the case [reference to House of Lords debate given]. The Home Office guarantees that any appellant will have the opportunity to contact a legal adviser before removal. If an appellant is detained phone calls to a legal adviser are paid for by the Home Office [reference to House of Commons debate given]. Further guidance to immigration officials will be that if a legal adviser has been notified and indicates that there are good grounds for an application for judicial review, removal will not take place before the application has been made and considered by the Courts [further reference to the House of Commons debate given]."

28. As I have made plain, any difficulties which may arise in practice out of the operation of the new rule will have to be considered as such and on their merits.
29. In my judgment there is nothing in the challenge to the vires of the rule. I would refuse this application.
30. LORD JUSTICE CLARKE: I agree. To my mind these rules are not even arguably ultra vires for the reasons given by Lord Justice Laws. I would, however, like to underline the important point he makes that the Secretary of State must act lawfully and not unlawfully. He cannot exercise his power under the rule in a way which may infringe a person's right of access to the court or to other legal process. Mr Sales correctly concedes that the Secretary of State cannot lawfully interfere with an applicant's right, for example to apply to the Chief Adjudicator to review a decision of an adjudicator who has dismissed a certified appeal and upheld the certificate, and/or to exercise any right of appeal to the IAT under section 65 of the Immigration and Asylum Act 1999, and/or to apply for permission to move for judicial review of the relevant decision.
31. It is common ground that an applicant has 10 days in which to apply to the Chief Adjudicator for a review, or to appeal to the IAT under section 65 of the 1999 Act, and that the 10 days runs from service of the adjudicator's decision on the applicant. In these circumstances, to put it no higher, it is difficult to see how the Secretary of State can lawfully adopt a policy which might lead to the deportation of an applicant who might wish to exercise such rights within three days. Any such policy would be potentially open to judicial review. However, no such application is made at present.
32. I agree with Lord Justice Laws that, for the reasons given by him, the application must be refused.
Order: Application refused. Community Funding Assessment of the applicant's costs.